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Cornell University Library 
KF 570.C95 1856 
v.3 

A digest of the law of real property 




3 1924 018 763 890 




4 Cornell University 
f Library 



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A 

DIGEST 



THE LAW OF EEAL PKOPERTY. 

BY WILLIAM iQETIISE^ ESQ. 



BARRISTER AT LAW. 



REVISED AND CONSIDERABLY ENLARGED 

BY HENKY HOPLEY WHITE, ESQ. 

BARRISTER AT LAW, OF THE MIDDLE TEMPLE. 



FURTHER REVISED AND ABRIDGED, WITH ADDITIONS AND NOTES, FOR THE 
USE OF AMERICAN STUDENTS, j # 

BY SIMON GREENLEAFnLL.D. 

EMERITUS PROFESSOR OF LAW IN HARVARD UNIVERSITY. 



IN SEVEN VOLUMES. 



VOLUME VI. 

CONTAINING 

Title 38. Devise. | Title 39. Merger. 

SECOND EDITION. 



BOSTON: 

LITTLE, BROWN AND COMPANY. 

1857. 



Entered according to Act of Congress, in the year 1857, 

»Bt James Greenleae, 
f the District Court of the District of Massachusetts. 



RIVERSIDE, CAMBRIDGE: 
PRINTED BY n. O. HOUGHTON AND COMPANY. 



CONTENTS OF THE SIXTH VOLUME. 



TITLE XXXVIII. 

DEVISE. 



CHAP. I. 

Origin and Nature of Devises. 

Sect, Star page. 

1. Origin of Devises ........ 3 

6. Statutes of Wills 4 

10. Nature of a Devise under these Statutes .... 6 

13. A Codicil id. 

15. No particular Form necessary 7 

18. A Devise transfers the Freehold id. 

19. And imports a Consideration id. 

20. Devises void against Creditors 8 

25. Devisees entitled to aid in Equity ^9 

27. A Will of Lands rifeed not be proved in the Ecclesiastical Court id. 



CHAP. II. 

Who may Devise, and to whom. 

1. Who may devise _ 12 

2. Who are disabled from devising 13 

3. Infants id. 

5. Married Women id. 

7. Idiots and Persons of nonsane memory .... 14 

8. Removal of Disabilities does not establish a Will . . id. 

13. To whom Lands may be devised id. 

14. Unborn Infants . . . . . . . . id. 

16. Married Women . . . . ' . . . % 15 



IV CONTENTS 01 


VOL 


. VI. 










Sect. Star, page. 










id. 


19. Persons uncertain . . 


,. 




id. 


20. Bodies Polity: cannot be Devisees 


. 




id. 


21. Devisees must submit to the whole Will 


16 


• 

CHAP. III. 


What may be Devised. 


• 

1. Estates in Fee Simple 22 


4. Estates for Lives 












id. 


5. Chattels Peal 












23 


7. Trust Estates 












id. 


8. Lands contracted for . 












id. 


13. Mortgages . . . 












25 


14. Equities of Redemption 












id. 


15. Advowsons .... 












26 


17. Eents .... 












id. 


19. Tithes .... 












id. 


20. Franchises 












icL 


23. Contingent Estates and Interests 












id. 


27. Joint Tenancies not devisable 












29 


30. Nor Rights of Entry . 












30 


32. The Devisor must be seised or entitled 










31 


37. And must continue seised or entitled 










33 


39. Exceptions .... 










id. 


40. Tenancies escheated .... 










34 


41. And Terms for Years 










id. 


CHAP. IV. 


Devises of Copyholds 












34 



CHAP. V. 

Solemnities necessary to a Devise. 



1. Statute of Frauds 

2. What is required by this Statute 

3. Writing .... 
7. Signing by the Testator 

14. Attestation by Witnesses 

21. Who ought to see the whole Will 



46 
47 
id. 
id. 
49 
51 



CONTENTS OF VOL. VI. 



Sect. 



Star page. 

53 



23. And must attest in the presence of the Testator 

32. But may attest at different times 55 

36. Wills and Codicils need not be separatelyattested ... 57 

44- Who may be Witnesses 60 

50. Publication . ~ . 61 

53. A Person cannot empower himself to give Lands by a Will not 

duly attested 62 

55. Wills charging Lands are within the Statute ... 63 

56. But not Codicils giving Legacies . , 64 

61. Devises of Trust Estates are within the Statute . . . 67 

63. And also of Mortgages and Equities of Redemption . . id. 

65. But not Terms for Years . . . . . . . 69 

67- Except Terms attendant on the Inheritance .... 70 

69. Wills made abroad within the Statute .... id. 

70. A Devise of Lands may be proved in Chancery. . . . id. 



1. 
2. 

4. 

8. 
15. 
16. 
18. 
19. 
25. 

26. 
27. 
29. 
32. 
34. 
38. 
43. 
44. 
45. 
57. 
58. 
59. 
62. 
69. 
71. 
75. 
78. 
85. 
88. 
89. 



CHAP. VI. 

Revocation of Devises. 

All Devises revocable .... 
Express Revocations .... 

I. A subsequent Will revoking, or inconsistent with 
Otherwise both Wills are good 

Two inconsistent Wills of the same Date are void 
A second unattested Will revokes Legacies . 

II. A Codicil 

III. A written Declaration .... 
Exception where Intention expressed to revoke by 

Act 

Or where the Revocation proceeds on Mistake 
Or on Deception 

IV. Cancelling ...... 

By the Testator, or by his Direction 

An Intention to cancel is sufficient 
An Obliteration of part does.not revoke the whole 
Cancelling one part revokes the other . 
Implied Revocations 



Marriage and Birth of a Child 
A Woman's Will revoked by Marriage . 
Alteration of the Estate . . . . 
Alienation to a Stranger . . . . 
Contract for Sale ..... 

An intended Alienation . . . . 

Alienation to the Use of the Testator . 
Alienation to strengthen the Devise 

Fine and Recovery 

Any conveyance inconsistent with the Devise 
Exchange ....... 

Parol Evidence not admissible 



a former one 



some 



future 



72 
73 
id. 
74 
78 
79 
80 
id. 

82 
id. 
id. 
83 
84 
id. 
86 
89 



92 
id. 
93 
id. 
94 
95 
96 
id. 
98 
103 
id. 



VI 



CONTENTS OP VOL. VI. 



Sect. 

92. A fraudulent Conveyance not a Revocation 
94. Nor an Alteration of the Quality of the Estate 

100. Nor the change of a Trustee 

103. Nor a Partition 

106. Unless it extends to other Things .... 

108. Revocation of Devise of Lands contracted for by subsequent 
Conveyance to Uses to prevent Dower 

110. Partial Revocations 

117. Bankruptcy 

119. Revocations of Leaseholds 



Star page. 

104 
105 
107 
id. 
108 

id. 
109 
111 

id. 



CHAP. VII. 

Republication of Devises. 

1. Nature and Effect of 

2. Re-execution is a Republication . 

3. And also a Codicil ..... 
12. Unless confined to Lands devised by the Will 

.15. Cancelling a second "Will republishes the first 
18. But a Will once cancelled must be re-executed 
20. A Surrender of a Copyhold is a Republication 



114 

id. 

id. 

120 

121 

122 

id. 



CHAP. VIII. 

Of Void Devises. 

2. Devise to the Heir at Law 

5. Though charged with Debts 

9. The Devisee must have been sole Heir 

11. A difference in the Estate rendered the Devise good 

18. Devises to Charitable Uses . . . 

21. JVhere there has been Fraud 

23. Where the Devisee dies before the Devisor . 

36. The Estate descends to the Heir . 

39. Where the Devise is uncertain 

42. Or the Devisee disagrees 



124 
125 

id. 
126 
128 

id. 

id. 
133 

id. 
134 



CHAP. IX. 

Construction of Devises — General Rules. 



1. The Intention must be effectuated . 
15. Words rejected or supplied 
.18. The word or construed and 



135 
138 
144 



CONTENTS OF VOL. VI. 



Vll. 



Sect. 

25. And construed or ... 

29. Arid and or construed literally 

30. Particular Estates sometimes transposed 

32. Contradictory Devises 

33. A Perpetuity cannot be created . 

40. But the Construction will be v Cy pres . 
45. No Averment admitted to explain Devises 
48. Unless there is a latent ambiguity 



Star page. 

147 
148 

id. 
149 

id. 
151 
153 



CHAP. X. 

Construction — What words create a Devise, and describe the 
Devisees, and the Things devised. 

2. What words create a Devise . . . . . . 157 

7. Words of Advice or Desire do not create a Devise . . 158 

14. But sometimes raise a Trust 161 

18. Devises by Implication 163 

27. What words necessary to describe the Devisees . . . 165 

37. The word Heir ......... 166 

49. The word Issue . 169 

52. The words Sons, Children, Relations, &c. . . . . . id. 

60. The words House or Family 173 

61. What words necessary to describe the Things devised . 174 

62. Lands, Tenements, and Hereditaments .... id. 
66. Messuage and" House ....... 175 

69. The word Estate id. 

72. All my Rents 176 

74. AU lam worth id. 

76. The word Legacy id. 

81. Residue or Remainder of Estate ..... 178 

90. Effect of additional words 182 

98. Words applied against their Technical Meaning . . . 185 

101. General words confined to Freehold . . . . 186 

117. What words necessary to pass Reversions .... 194 

132. And Mortgages 200 

140. And Trust Estates 202 

142. And Equities of Redemption 204 , 



CHAP. XI. 

Construction — What words create an Estate in Fee Simple. 

2. Words showing an Intention to give the whole Interest . 207 

18. Words of Reference 211 

20. Effect of an Introductory Clause 212 

25. The word Estate 213 



Vlll 



CONTENTS OF VOL. VI. 



Sect. 

39. Testamentary Estate 

'41. All my Real Property .... 

45. Bight, Title, and Interest . . - . 

48. All the Best and Residue of my Estate 

55. "Whatever else I have not disposed of 

1 57. Remainder and Reversion .... 

60. Devise on Condition of paying a sum of Money 

65. Or charged with Debts and Legacies . 

72. Or with a Perpetual Annual Payment 

76. Or for the Life of a Third Person 

84. A Devise with a Limitation over 
88. Devise to Trustees for Purposes requiring a Fee 

92. What words pass the whole Interest in a Chattel 



Star page. 

217 

id. 

id. 

218 

220 

221 

id. 

222 

224 

225 

227 

228 

229 



CHAP, xii. 

Construction — What words create an Estate Tail. 

1. No technical words necessary . . . ... 

7. The word Heirs qualified»by subsequent words 

20. Or by a Remainder over to a Collateral Heir 

27. The words Issue, Children, &c. . . 

32. An Estate Tail may arise by Implication 

46. A Devise for Life may be enlarged into an Estate Tail 



231 
232 

237 
239 
240 
244 



CHAP. XIH. 

Construction — What words create an Estate for Life, a Term for 
Tears, and uncertain Interests. 

1. Where an express Estate for Life is given .... 254 

5. Though a Power of Disposing be added .... 256 

9. A Devise without any words of Limitation . . . 259 

28. Though charged with a Payment ..... 267 

36. Or an Annuity during the Life of the Devisee . . . 270 

38. The word Estate, when descriptive of Local Situation . . id. 

. 41. The word Hereditament 272 

42. Where the general intent is to give a Life Estate, notwith- 
standing words of limitation . . . . ■ . . id. 

47. What words create a Term for Tears 273 

49. And uncertain Interests 274 



CHAP. XIV. 

Construction — Rule in Shelley's Case. 
1. Applied to Devises of legal Estates , 



275 



CONTENTS 01? VOL. VI. 



;x 



Sect. 

7. Though the Limitation be only mediate 
10. Though the Estate for Life arise by Implication . 
12. Where the word Heir in the singular Number is used . 
17. Though there are superadded words .... 
21. Or words of Modification of the Estate 
26. Applied in Devises of Trust Estates .... 

34. And in Estates pur autre vie 

37. And in Wills of Terms for Years .... 

39. The rule not applied to the words Sons or Children 
44. Or to the word Heirs with words of Explanation . 
48. Or to the word Heir with words of Limitation 

51. Or to Heirs with words limiting a particular Kind of Estate 

52. Or to the Heir for Life ...... 

54. Or to Issue with words of Limitation .... 

58. Unless the general Intent require a different Construction 
63. Or where an Executory Trust is created 

72. Or where the Estates are of different Natures 

76. Case of Perrin v. Blake . . . . * . 

78. General Observations on the Rule .... 



Star page. 

277 
279 
280 
281 
283 
284 
289 
290 

id. 
291 
295 

id. 
296 
297 
298 
306 
312 
313 
325 



CHAP. XV. 

Construction — What words create a Joint Tenancy, or Tenancy in 
Common, and Cross Remainders. 



1. What words create a Joint Tenancy . 
12. What words create a Tenancy in Common . 
29. What words create Cross Remainders 
37. Formerly not implied between more than two 
42. This Doctrine somewhat altered . 



329 
336 
343 
345 
346 



CHAP. XVI. 

Construction — What words create a Condition, make Lands liable to 
Debts, and enable Persons to sell Lands. 



1. What words create a Condition . . 

4. Where construed a Limitation 

7. What words make Lands liable to Debts and Legacies 

18. The same words extend to Copyholds . . . . 

21. Legacies not preferred to specific Devises . 

24. What words enable Persons to sell Lands . 



853 

354 
id„ 
358 
359- 
360 



CHAP. XVH. 

Executory Devises — Devise over after a Devise in Fee Simple. 
1. Origin of Executory Devises 



366 



X CONTENTS OF VOL. VI. 

Sect. 8to » 

2. Devise over after a Devise in Fee ""* 

9. Though the first Estate be not vested . . • • 368 

11. No. Devise is executory which can be supported as a Eemainder 369 

14. An Executory Devise cannot be barred .... *»■ 

17. "Within what time an Executory Devise must vest .. . _ 370 

23. A Devise over after a general Failure of Heirs or Issue is void 372 

24. Unless restrained to the Period allowed .... ,id. 
27. Curtesy attaches on the first Estate 374 



CHAP. XVIII. 

Executory Devises — Devise of a. Freehold Estate to commence infutwo. 

1. Devise of a Freehold to commence in futuro . . 377 

6. Devises of this Sort sometimes supported as Remainders . 378 

13. Must vest within the Period allowed 380 

18. A Devise after a general Failure of Heirs or Issue is too remote 382 

22. Exceptions — I. A Devise of a Reversion .... 384 

26. II. A Devise in Default of Issue of the Devisor . . . 388 

30. HI. A Devise over for Life on Failure of Issue of the first Devisee 391 

31. IV. Where an Estate Tail is raised by Implication . . id. 



CHAP. XIX. 

Executory Devises of Terms for Tears. 

1. A Bequest over of a Term for Years is now good . . 393 

5. And a similar Declaration of Trust of a Term . . . 394 

6. Though to a Person not in esse, or not ascertained . . id. 
9. The first Devisee cannot bar the Devise over . . . 395 

13. Must vest within the Period allowed id. 

14. Cannot be limited after a general Failure of Heirs or Issue . 396 
18. Unless such Failure is confined to the Time allowed . . id. 
24. The words " Dying without Issue " sometimes restrained to the 

Death of a Person in esse 402 

31. No Distinction between an express Estate Tail, and one by Im- 
plication . . . • . . . . 406 
33. Nor between a Devise for Life, and an indefinite Devise . 407 
36. An Executory Devise for Life after a general Failure of Issue 

is good 408 



CHAP. XX. 

Other Matters relating to Executory Devises. 

1. Where one Limitation is executory, all the others are so likewise 409 
5. A preceding executory Limitation may be uncertain, when a 

subsequent one may be certain 411 



CONTENTS OF VOL. VI. xi 
Sect. _ Star page: 

11. A preceding Executory Limitation is not a Condition precedent 412 

17. Limitations over after an Executory Devise of the whole Inter- 
est, sometimes good . . '. . . .414 

22. Distinction between Cases where a subsequent Limitation may 

become good or not . . . . ' . . . 417 

24. A Limitation which was originally a Contingent Eemainder 

may take effect as an Executory Devise . . . . 418 

30. Distinction between Executory Devises per Verba de Prcesenti, 

and per Verba de Futuro 422 

35. The Freehold descends in the meantime .... 423 

38. And also the intermediate Profits id. 

41. Which will pass by a Devise of the Residue . . . . 424 

44. Executory Interests are devisable , id. 

48. And also assignable . . 425 

51. Might before stat. 3 & 4 Will. 4, c. 74, be passed by Fine or 

Recovery and may now be released .... id. 

52. Descendible and transmissible to Heirs and Executors . . 426 
55. Chancery will restrain Waste . . . . . . 427 

57. Trusts of Accumulation confined to the same period as Execu- 
tory Devises 429 



TITLE 

MERGER. 



I. Defined . . . . . 

Distinguished from Suspension 

Extinguishment .... 
Implied Surrender .... 

II. Requisites to produce Merger. 

1. The estates must meet in the same Person without 

any intervening Estate 

2. They must be Estates, not Rights .... 

3. They must be Estates in the same Part of the Land . 

4. The Estate in Remainder or Reversion must be in 

quantity, as great as, or greater/ than the preced- 
ing Estate . . ' . . . . .31 
and herein of the Gradation of Estates 

5. The Estates must unite in the same Person in the same 

Right, or, if in different Rights, they must meet by 

Act of the Party, and not by mere Act of Law . 51 479 

6. And if in different Rights, an absolute Power of Alien- 

ation must be incident to both Estates . . .54 480 

7. Both Estates must be legal, or both equitable . . 57 481 



Sect. Star page. 


1 


467 


3 


id. 


4 


id. 


5 


468 


. 9 


469 


. 14 


470 


. 20 


471 


. 31 


473 


. 37 


475 



Xia CONTENTS OF VOL. VI. 

HI. Exemption from Merger, when the Union of Estates and 
Interests does not produce Merger. 

1. Estates Tail and the Remainder or Reversion . 

2. Estates in different Rights meeting by Act of Law 

3. Estates limited by the same Instrument . 

4. Executory Devises 72 

5. Estates conveyed by the same Deed for the Purpose 

of conferring the collective Ownership or Duration 
of both Estates 

6. Estates in Seisinee- to Uses .... 

7. Power of general Appointment and, the Fee under 

Limitations to Uses 92 490 

IV. Consequences of Merger. . . 

1. Upon the Party whose Estate is merged . . . -95 491 

2. Upon Persons having Interests derived thereout ; and 

herein of equitable Relief . . . . . 100 id. 

3. Upon the Estate in which the merged Estate is ab- 

sorbed 110 494 

V. Extinguishment. 

Its Nature and Effects ; and herein of the Extinguish- 
ment of Charges ....... 118 495 



Sect. Stai 


:page. 


61 


481 


63 


483 


66 


id. 


72 


485 


77 


486 


89 


489 



DIGEST 



-OP THE 



LAW OF REAL PROPERTY. 



TITLE XXXVIII. 

DEVISE. 



BOOKS OP REFERENCE UNDER THIS TITLE. 

Blackstone's Commentaries. Book II. ch. 32. 

Kent's Commentaries. Vol. IV. Lect. 68. 

Bacon's Abridgment. Tit. Legacies and Devises. 

(This title consists of the substance of a treatise, usually ascribed to Lord Chief 
Baron Gilbert.) 

Ld. Ch. Baron Gilbert. Law of Devises, Last Wills, and Revocations. 

John Joseph Powell. An Essay on Devises. With the Notes of Jarman. 

Richard Preston. An Elementary Treatise on Estates. Vol. II. ch. 6. On 
Wills. 

William Roberts. A Treatise on the Law of Wills and Codicils. 

Thomas Jarman. A Treatise on Wills. With the Notes of Mr. Justice Perkins. 

John Godolphin. The Orphan's Legacy. 

Henry Swinburne. A Treatise of Testaments and Last Wills, &c. 

James Hawkshead. An Essay on the Operation, in Wills, of the word " Issue," 
&c. 

William Hates. An Inquiry into the Effect of the Limitation to " Heirs of the 
Body" in Devises, &c. 

The Same. Principles for expounding Dispositions of Real Estate, &c. 

Charles Fearne. An Essay on the Learning of Contingent Remainders and 
Executory Devises. Butler's edition, with Smith's Notes. 

James Wigram. An Examination of the Rules of Law, &c, in aid of the Inter- 
pretation of Wills. 

James Ram. A Treatise on the Exposition of Wills of Landed Property. 

Fr. Mantica. Tractatus de Conjecturis Ultimarum Voluntatum. 

Fern. Vasquius. De Successionibus, et Ultimis Voluntatibus. 
VOL. III. 1 



2 Title XXXVIII. Devise. 

CHAP. I. 

ORIGIN AND NATURE OF DEVISES. 

' chap. n. 

WHO MAY DEVISE, AND TO WHOM. 

CHAP. III. 

WHAT MAT BE DEVISED. 

CHAP. IV. 

DEVISES OF COPYHOLDS. 

CHAP. V. 

SOLEMNITIES NECESSARY TO A DEVISE. 

CHAP. VI. 

REVOCATION OF DEVISES. 

chap. vn. 

REPUBLICATION OF DEVISES. 

CHAP. VIII. 

OF VOID DEVISES. 

CHAP. IX. 

CONSTRUCTION OF DEVISES — GENERAL RULES. 

CHAP. X. 

CONSTRUCTION — WHAT WORDS CREATE A DEVISE, AND DESCRIBE THE 
DEVISEES, AND THE THINGS DEVISED. 

CHAP. XI. 

CONSTRUCTION — WHAT WORDS CREATE AN ESTATE IN FEE SIMPLE. 

CHAP. XII. 

CONSTRUCTION — WHAT WORDS CREATE AN ESTATE TAIL. 

CHAP. XIII. 

CONSTRUCTION — WHAT WORDS CREATE AN ESTATE FOR LIFE, A TERM 
FOR YEARS, AND UNCERTAIN INTERESTS. 



Title XXXVIII. Devise. Ch. I. s. 1. 3 

CHAP. XIV. 

CONSTRUCTION — RULE IN SHELLEY'S CASE. 

CHAP. XV. 

CONSTRUCTION — WHAT WORDS CREATE A JOINT TENANCY, A TENANCY IN 

AND CROSS REJL 

CHAP. XVI. 

DS CREATE A CO] 
BLE TO DEBTS, AND ENABLE PERSONS TO SELL LANDS. 

chap. xvn. 

EXECUTORY DEVISE — DEVISE OVER AFTER A DEVISE IN FEE SIMPLE. 

CHAP. XVIH. 

EXECUTORY DEVISE — DEVISE OF A FREEHOLD ESTATE TO COMMENCE 

in futuro. 

CHAP. XIX. 

EXECUTORY DEVISES OF TERMS FOR YEARS. 

CHAP. XX. 

OTHER MATTERS RELATING TO EXECUTORY DEVISES. 



CHAP. I. 



ORIGIN AND NATURE OF DEVISES. 



.Sect. 1. Origin of Devises. 
6. Statutes of Wills. 
10. Nature of a Devise under 

these Statutes. 
IS. A Codicil. 

15. No particular Form neces- 
sary. 
18. A Devise transfers the Free- 
hold. 



Sect. 19. And imports a Consideration. 
20. Devises void against Credi- 
tors. 
Devisees entitled to Aid in 

Equity. 
A Will of Lands need not be 
proved in the Ecclesiasti- 
cal Court. 



25. 



27. 



Section 1. The last mode of conveying real property is by 
devise, or disposition contained in a person's last will and testar 
ment, to take place at the death of the devisor. The word devisa, 



4 Title XXXVIII. Devise. Ch. L s. 1—4. 

devise, appears to be derived from divide, and originally meant 
any- kind of division or distribution of property.' But it was used 
to denote a will or testament so early as in the time of Glan- 
ville, who says, Potest enim quilibet homo, majoribus debitis non 
involutus, de rebus suis, in infirmitate sud rationabilem devisam 
facer e. (a) 

'■ 2. It is generally agreed, that the power of devising lands 
existed in the time of the Saxons ; f but upon the establishment 
of the Normans, it was taken away as inconsistent with the prin- 
ciples of the feudal law ; and although many of the restraints on 
alienation by deed were removed before Glanville wrote, yet the 
power of devising lands was not allowed for a long time after; 
partly from an apprehension of imposition on persons in their last 

moments ; and partly on account of the want of that pub- 
4* lie notoriety which the common law requires *in every 

transfer of real property. It is therefore said, in the same 
chapter of Glanville from which the passage in the preceding sec- 
tion is taken, which relates to personal property only, that no one 
could dispose of his lands by will. De hcereditate vero nihil in 
ultimd voluntate disponere potest, (b) l 

3. The power of devising continued however as to socage lands, 
situated in cities and boroughs, and also as to all lands in Kent, 
held by the custom of gavelkind ; and as the ancient Saxon laws 
are supposed to have remained unaltered in Kent, this is an addi- 
tional proof, that lands were generally devisable in the time of 
the Saxons, (c) 

4. We have seen that a power of devising lands was indirectly 
acquired, by means of the invention of uses, and this power ap- 
pears to have been not only allowed by the crown and the legis- 
lature, but even, in some particular instances, to have received 
their sanction ; for by the statutes 7 Hen. VII. c. 3, and 14 & 15 
'Hen. VIII. c. 14, persons who were in the King's service in the 

(a) (Glanv. lib. 7, c. 5.) 

(b) 1 Inst. 1U b, n. 1, 2. 2 Inst. 7- ' Wright's Ten. 173. Tit. 32, c. 1. 

(c) Lit. s. 167. Eob. Gav. 234. 



[t The will of King Alfred is preserved in a Register of the Abbey of Newminster, 
and has been lately printed at Oxford.] 

1 Glanv. lib. 7, c. 1, 5. See also, Spence on the Equitable Jurisdiction of Chancery, 
Vol. I. p. 20, 136. 4 Kent, Comm. Lect. 68, sec. 1, p. 501-505. 



Title XXXVIII. Devise. Ch. I. s. 4—7. 5 

wars were allowed to aliene their lands, for the performance of 
their wills, without license, or fine for alienation, (a) 

5. The practice of devising the use of lands carried the power 
of disposing of real property much further than was consistent 
with the nature of tenures. It tended to deprive the lords of 
their wardships, profits of marriages, and reliefs ; and the King 
of his. primer seisin, livery, and fines for alienation ; which con- 
stituted a considerable part of the ancient revenue of the crown. 
This, together with many other inconveniences that flowed from 
the doctrine of uses, was removed, by the statute 27 Hen. VIII. 
which, uniting the legal seisin of the land to the use, effectually 
toot away the power of devising, (b) 

6. The inconveniences which attended this restraint on the 
disposition of lands by devise, induced the legislature, In a few 
years after, to give to every proprietor of land a power to devise 
a portion of it. For this purpose an act was passed, 32 Hen. VIII. 
intituled, " The Act of Wills, Wards, and Primer Seisins," re- 
citing, that persons of landed property could not conveniently 
maintain hospitality, nor provide for their families, the education 
of their children, or the payment of their debts, out of their goods 
and movables ; it therefore enacts, that all and every person 
and persons, having manors, lands, tenements, or heredi- 
taments, may give and dispose of them, as well by *last * 5 
will and testament in writing, as by any act, executed in 

their lifetime, in the following manner : if they held in socage, 
they might devise the whole ; and if they held of the King, or 
of any other person, by knight service, they might devise two 
parts, or as much as should amount to the yearly value of two 
parts in three, in certainty, and by special divisions, so as it 
might be known. 

7. By the stat 34 and 35 Hen. VIII. c. 5, intituled " The Bill 
concerning the Explanation of Wills," reciting that several 
doubts, questions, and ambiguities had risen upon the statute 
32 Hen. VIII. it was enacted, (s. 3,) that the words, " estate of inher- 
itance," used in that statute, should mean only an estate in fee 
simple. And it was further enacted, (s. 4,) " That all and singu- 
lar person and persons, having a sole estate or interest in fee 
simple, or seised in fee simple, in coparcenary, or in common in 

(a) Tit. 11, c. 2. (6) Idem. 

1* 



6 Title XXXVIII. Devise. Ch. I. s. 7—10. 

fee simple, of and in any manors, lands, tenements, rents, or 
other hereditaments, in possession, reversion, or remainder, or of 
rents or services incident to any reversion or remainder, shall 
.have full and free liberty, power, and authority to give, dispose, 
will, or devise, to any person or persons, (except bodies politic 
and corporate,) by his last will and testament in writing, as 
much as in him of right is or shall be, all his said manors, lands, 
tenements, rents, and hereditaments, or any of them, or any 
rents, commons, or other profits or commodities out of, or to be 
perceived of the same, or out of any parcel thereof, at his own 
free will and pleasure." 1 

8. Under the authority of the above statutes, no more than 
two thirds of lands held by knight service, either of the King, 
or of a» subject, could be devised.; but in consequence of the 
abolition of military tenures, and the conversion of knight service 
and all the other old modes of holding lands into common 
socage, the operation of these statutes was extended to all free- 
hold estates in fee simple. 

9. The statutes of wills, being in the affirmative, were held not 
to take away the custom of devising ', and formerly it was of 
importance, in many cases, to resort to the custom of devising, 
as being most beneficial for the devisee. But now, the two 
powers being assimilated and made for the most part commen- 
surate, it can seldom happen that it should be necessary to call 

in aid the power by custom ; though it is possible, as 
6* where *the custom enables an infant of fourteen, or a 
feme covert, to devise lands, (a) 

10. The idea of a devise of land was evidently taken from 
the Testament of the Roman law, which was at all times allowed 
in England, with respect to personal property. But the power 
of devising lands, being given by positive statutes, is only coex- 
tensive with the words of those statutes. A devise is therefore 

(a) 1 Inst. Ill, n. 4. 3 Eep. 35. 



1 The language of the earlier Statutes of Wills in Massachusetts and New Hampshire, 
and of the present statutes of Rhode Island and Alabama, so far as concerns the seisin 
of the testator, is in substantial conformity to this statute of Hen. 8. See the obser- 
vations of Jackson, J., in Osgood v . Breed, 12 Mass. 530 ; Alabama Rev. St. 1823, 
p. 883, § 2 ; R. Island Rev. St. 1844, p. 231. In other States, the power of devising is 
more broadly given. See infra, ch. 3, § 37, note. 



Title XXXVIII. Devise. Ch. I. 5. 10—15. 7 

founded on different principles, and governed by different rules, 
from a testament, which, in the English law, is only an instru- 
ment to transmit personal property ; for a devise is considered, 
not so much in the nature of a testament, as of a conveyance, 
declaring the uses to which the land shall be subject after the 
death of the devisor. 

11. The word ''• testament" in the Roman law, was applied only 
to dispositions which contained the institution or appointment 
of an heir, who was to take all the property of the testator ; and 
the Homan lawyers observe, that a testament might be made in 
five words — Quinque verbis potest quis facere testamentum ; ut 
dicat, Lucius Titius mihi hares esto. (a) All other dispositions, in 
which there was no heir named, were called codicils, or dona- 
tions in contemplation of death ; but the English law does not 
admit of these distinctions, for a devise does not necessarily imply 
the appointment of a general heir, or a disposition of all the tes,- 
tator's lands, but only those which are particularly* mentioned ; 
and the residue descends to the heir, as if no such partial devise 
had been made. 

12. It has been already stated, that wills, made in execution of 
powers, are, in fact, appointments of uses ; but still that they have 
all the essential qualities of wills, or devises of land, (b) 

13. A codicil, of which the name only is taken .from the 
Roman law, is a supplement to a devise, or an addition made by a 
testator to his will, and of which it is considered as a part, being 
intended to alter or explain, or to make some addition to, or sub- 
traction from, the former dispositions of the testator. 

14. A person may therefore make several wills, of different 
parts of his lands, or of distinct estates and interests therein. 
He may also make several codicils, altering, explaining, adding 
to, or subtracting from what was before devised ; or devising 
a part of his estate not disposed of by any former will or 
codicil; *and the law will annex such codicil or codicils *7 
to his will, and consider the whole as one instrument. 

' 15. The law has not prescribed any particular form, in which a 
will or codicil must be made : so that any ivriting, by which the 
intention of a person appears, to give or dispose of his lands, 

(a) (Dig. lib. 28, tit. 5, 1. 1.) (J) Tit. 32, o. 17. 



8 Title XXXVIII. Devise. Ch. I. s. 15—20. 

after his decease, though in the form of a deed, will be consid- 
ered as a good devise, (a) 

16. C. Whitham, by indenture made between him of the one 
part, and Orbel and Skin of the other part, declared his inten- 
tion to raise portions for his children, and to pay his debts ; and 
thereby settled his lands on Orbel and Skin, in trust to sell the 
same, &c, and made them executors, to the uses aforesaid ; and 
signed, sealed, published, and declared this to be his last will, in 
the presence of several witnesses. The Court of Chancery de- 
clared this to be a good will, (b) 

17. In a modern case, which will be stated hereafter, Lord 
Loughborough, Mr. J. Buller, and Mr. J. Wilson held, that a 
deed poll, which was intended to operate after the death of the 
person who made it, and who had already published his will, to 
which it referred, should be considered as a codicil, (c) 

. 18. In the case of a devise of lands, the freehold is transferred 
to the devisee before entry; and he may enter without the assent 
of the devisor's heir, to whom nothing descends. If the devisor's 
heir should enter on the lands devised, the devisee may bring an 
ejectment against him, which, however, is his only remedy. And 
those, to whom lands are given by devise, are said to take in the 
nature of purchasers ; though the bounty of the testator is the 
only consideration supposed in a will. But it is settled that a 
devisee may disagree to, and disclaim a devise ; in which case 
nothing will vest in him. (d) 

19. A devise imports a consideration in itself; consequently 
there cannot be a resulting use upon it ; nor can it be averred to 
be to the use of any other but the devisee. It is for this reason 
tha;t a devise of lands cannot be averred at law to be a bar to 
dower, jointure, or any other right or interest to which the 
devisee may be entitled. It has, however, been stated, that in 
equity a devise is sometimes considered as a satisfaction ; and it 
should be observed, that a will does not defeat a prior voluntary 

conveyance, (e) 
8 * * 20. Soon after the Statute of Wills, it was found that 

(a) (1 Jarm. on Wills, ch. 2, Perkins's ed.) [Bayley v. Bailey, 5 Cush. 245.] 
(6) Hicksonu. Whitham, Finch. R. 195. Green v. Pronde, 1 Mod. 117. Clymer v. Littler, 
1 Black. R. 345. (c) Habergham v. Vincent, 6 T. R. 92. 2 Vez. 204. 

(d) 1 Inst. Ill, a. l.Show. R. 71. (2 Smith, Leading Cas. 403.) Infra, c. 8, § 42. 

(e) Tit. 6, i>. 4, s. 18. Tit. 11, c. 4. Tit. 32, c. 28, s. 49. 



Title XXXVIII. Devise. Ch. I. . s. 20— 23. 9 

the power of devising was attended with some very material 
inconveniences ; for creditors by bond or other specialty, which 
affected the heir, provided he had assets by descent, were de- 
frauded of their securities ; not having the. same remedy against 
the devisee of their debtor. But by the statute 3 Will, and 
Mary, c. 14, it is enacted, (s. 2,) that all wills and testaments shall 
be deemed and taken, only as against creditor or creditors by bond 
or other specialty, in which the heirs are bound, their heirs, suc- 
cessors, executors, administrators, and assigns, to be fraudulent 
and utterly void. [By the third section, creditors were empowered 
to bring their actions against the heir and devisee ; and by the 
fourth section it was provided, that devises for payment of debts 
or portions for the child or children of any person, (other than the 
heir at law,) in pursuance of contracts before marriage should be 
valid. i 

21. There were some cases of hardship for which the above 
statute did not supply a remedy ; if there happened to be no heir, 
the creditor could not bring his action against, the devisee ; and 
it was decided, that the statute only applied to those Cases of 
specialty debts, for which actions of debt could be brought, 
namely, for sums certain, but that it gave no remedy for damages 
for breach of covenants or contracts under seal, (a) 

22. The- statute of 1 Will. IV. c. 47, (b) repeals the above 
statute and substitutes other enactments in its stead : by this 
statute, as we have before noticed, the devisee is placed in the 
same situation as the heir, and the creditor may proceed against 
the devisee, or the devisee of such devisee, and not only in 
respect of bonds and covenants for sums certain, but of all 
other specialties. The fifth section enacts the proviso sect. 4, of 
the statute of Will, and Mary, omitting the words, " other than 
the heir at law." (c) 

23. Mr. Fonblanque has observed, that in consequence of the 
fourth section of the statute of Will, and Mary, bond and other 
specialty creditors, whose demands do in their nature affect the 
lands, are still liable to be prejudiced by the right of their debtor 
to devise his real estate ; for if he devise, subject to the pay- 
ment of his debts, his simple contract creditors will by such 
devise be entitled to be pa"id pari passu with his bond or 

(a) Wilson v. Knubley, 7 East, 128. (b) § 3, i, 6, 8. (c) Vol. 4, p. 93, 



10 Title XXXVIII. Devise. Ch. I. 5. 23—28. 

9* * specialty creditors ; because, in conscience, their debts 
are to be equally favored, being equally due. (a) 

24. A case has been already stated, in which it was determined 
that an estate in reversion is within this statute ; that a devise of 
the reversion by the heir of the obligor, is also within the act ; 
and that, in such a case, the lands are liable, (b) 

25. Persons who claim lands under a will, having- the law on 
their side, are entitled, as against the heir of the devisor, to the 
aid and assistance of a court of equity, for a discovery of the 
deeds and writings relating to the estate devised, and to have them 
delivered up, as following the lands. „ This course of proceeding 
is said arguendo to be founded on the highest reason ; for other- 
wise, all wills of land might be disappointed, and the heir at law, 
by obtaining possession, and getting the deeds into his custody, 
unless compelled to discover and produce them, in order to make 
out the title of the devisee, might defend himself at law, by set- 
ting up prior incumbrances, and by that means prevent a legal 
trial of the validity of the will, and totally frustrate the intention 
of the testator, (c) 

26. A devisee is also entitled, in equity, to have any incum- 
brance which may be on the devised estate paid off for his 
benefit, (d) 

27. A will of freehold lands need not be proved in the Eccle- 
siastical Court ; although that is usually done ; because most 
wills of land contain also a disposition of personal estate ; for 
the probate of such a will cannot be given in evidence, because 
the proceedings, so far as they relate to freehold interests in land, 
are coram nonjudice ; the Ecclesiastical Courts having no power 
to authenticate such instruments, (e) 1 

28. It is therefore frequently necessary to produce the original 

(o) Treat, of Eq. B. 1, u.A, s. 14. 1 Bro. C. C. 311. 4 Ves. 550. 

(6) Kynoston v. Clarke, tit. 17, s. 31. (c) Newcastle v. Pelham, 3 Bro. Pari. Ca. 460. 

(d) Tit. 15, o. 4, s. 4. (e) Cro. Car. 296, 346. 4 Burn's Eeol. Law, 195. 



1 In the United States, where Courts are constituted hy statute, with general power 
to take the probate of wills, the statute is understood to confer complete jurisdiction 
over the probate of all wills, as well of real as of personal estate ; and therefore 
to render their decrees conclusive upon this subject, in any other Courts. But in 
New York, New Jersey, Maryland, and South' Carolina, the English rule has been 
followed. See 1 Greenl. Evid. § 550 ; 2 Greenl. Evid. 672*; 1 Jarm. on Wills, 21, 22, 
note by Perkins. In Maine, Massachusetts, Vermont, Flprida, and several other States, 



Title XXXVIII. Devise. Ch. I. s. 28—29. 11 

will, and for that purpose to get it out of the Ecclesiastical 
Court, in which it was proved^ and in such a case, an applica- 
tion must be made to the Court of Chancery, for an order to have 
the will delivered, (a) 

29. This principle does not, however, apply to wills of chattels 
real, or terms for years, because they vest in executors; conse- 
quently they must be proved in the Ecclesiastical Court, having 
jurisdiction where the lands lie. (&) 

(a) 1 Atk. 627. 4 Bro. C. C. 476. (6) Tit. 8. 

the probate is made conclusive, by statute. In Ohio, it is made conclusive after the 
lapse of two years. 

[The Courts of the United States (i. e. the Federal Courts) have no probate jurisdic- 
tion. They receive the sentences of the Courts to which the jurisdiction over testa- 
mentary matters is committed, as conclusive of the validity and contents of a will. 
Fouvergne v. New Orleans, 18 How. U. S. 470.] 



12 



CHAP. II. 



WHO MAY DEVISE, AND TO WHOM. 



Sect. 1. Who may Devise. 

2. Who are disabled from Devis- 

ing. 

3. Infanta. 

6. Married Women. 

7. Idiots and Lunatics. 

8. Remooal of Disabilities has no 

effect. 
13. To whom Lands may be de- 
vised. 



Sect., 14. Unborn Infants. 
16. Married Women. 
17-. Aliens. 

18. Bastards. 

19. Persons uncertain. ' 
20,'Bodies'Politic cannot be De- 
visees. 

21. Devisees must submit to the 
whole Will. 



Section 1. To the validity of every devise, it is necessary 
that there should be a devisor, capable of disposing of, and a de- 
visee or devisees capable of taking, the lands devised. With 
respect to the persons who "are capable of devising, all those who 
have a power of disposing- of their real estates by any conveyance 
inter vivos, may dispose of*them by will. 1 

2. With respect to the persons who are disabled from, devising 
lands, the Statute of Wills mentions four personal disqualifica- 
tions to the power of devising. 2 

3: The first of these is infancy ; and therefore persons, under 

the age of twenty-one years, are incapable of deyising their 

lands. But r if there be a local custom that lands and tenements, 

, within a certain district, shall be devisable by all persons of the 



1 In England, persons attainted of treason, or convicted of felony, are incapable of 
making an effectual devise, by reason of the forfeiture of their estates. :• 1 Roberts 
on Wills, p. 30, 31. But in the United States, that incapacity no .longer exists. See 
ante,' tit. I, § 67, note; tit. 29, ch. 2, § 20; tit; 30, § 11, note; Rankin v. Rankin, 
6 Monr. 531. 

2 The subject of the personal disabilities of testators, is treated by Mr. Justice 
Perkins in his additional chapter 3, in his second edition of Jarman on Wills, Vol. I. 
p. 28-80, with an accuracy of discrimination and extent of research which will richly 
reward the diligent student's perusal. 



Title XXXVIII. Devise. Ch. II. s. 3—5. 13 

age of fifteen years or upwards, a devise of such lands by an 
infant of fifteen will be good. 3 

4. An infant may devise the guardianship of his child, by 
virtue of the statute 12 Cha. II. c. 24 ; 2 and it has been con- 
tended, that such a disposition will draw after it the land, as 
incident to the guardianship ; but this point has not been deter- 
mined, (a) 

5. Married women are also expressly disabled, by the Statute 
of "Wills, from devising their lands. 3 But married women are now 

(a) Bedell v. Constable, Vaugli. 177. 



1 In the States of Vermont, Maryland, Ohio, Illinois, and Mississippi, unmarried 
females are, by statute, made capable of devising their estates at the age of eighteen. 
See LL. Maryl. Vol. I. p. 370, ch. 101, sub ch. 1, § 3, Dorsey's ed.; Ohio Eev. St. 
1841, ch. 59, § 1, ch. 129, § 1 ; Illinois Eev. St. 1839, p. 686 ; Mississippi Eev. St. 
1840, ch. 36, § 2 ; Vermont Eev. St. 1839, ch. 45, § V, ch. 65, § 1. 

2 This provision is found in the statutes of Connecticut, New York, New Jersey, 
Virginia, North Carolina, Alabama, Georgia, Kentucky, Tennessee, and Mississippi. In 
the statutes of, Rhode Island and Pennsylvania, the power of appointing a guardian bv 
will is restricted to those fathers who are authorized by law to make a will. In the 
laws of Indiana, Michigan, Ohio, Florida, Arkansas, Delaware, Maine, and Massachusetts, 
the language is general, that " every father," " the father," " a father," may appoint a 
testamentary guardian to his children. But, whether fathers under age are empowered 
by this general language, is not known to have been judicially determined. See infra,. 
§ 5, note. See also 2 Kent, Com. 225. 

3 The same disability is expressed in the statutes of Rhode Island, New York, New- 
Jersey, Delaware, Virginia, Georgia, Kentucky, and Indiana. But it is conceived that in 
these States, a testamentary disposition of her estate by a married woman, made pur- 
suant to >■ power contained in a marriage settlement, or other ante-nuptial contract 
would be enforced as a valid appointment ; those statutes being merely in affirmance 
of the common law ; 4 Kent, Comm. 505, 506 ; Osgood v. Breed, 12 Mass. 525, 530 ;, 
Marston v. Norton, 5 N. Hamp. 205 ; West v. West, 10 S. & E. 446. 

In Missouri and Arkansas, married women are expressly empowered, by statute, to. 
devise their own separate estates, if so authorized by an "ante-nuptial agreement with 
the husband. In such cases, the disposition would seem to be strictly a devise, operat- 
ing directly, and proprio vigore, without the aid of chancery, or other instrumentality. 

In Massachusetts, the wife is authorized, by statute, in all cases, to devise and dispose- 
of her estate by will, if the husband indorses his assent thereon. [Where all the de- 
vises in the will are to the husband, or for his benefit solely, he need»not indorse his 
assent and approval thereon. Stat. 1850, ch. 200. By the statute of 1855, ch. 304,, 
§ 5, it is provided, that " any woman hereafter married, may, while married, make a 
will; but such will shall not deprive her husband of his rights as tenant by the curtesy, 
and she shall not bequeath away from him more than one half of her personal property, 
without his consent in writing ; and any woman now married, may make a will of her 
real estate, which, however, shall not deprive her husband of his rights as tenant by the 
curtesy."] In Michigan, also, the same power is given to her, provided the written, 
assent of the husband be annexed to the will, and signed, attested, and proved in the 
VOL. III. 2 



14 Title XXXVIII. Devise. Ch. II. s. 5^-7. 

frequently enabled to dispose of lands by wills, operating as 
appointments under powers contained in conveyances to uses, (a) 
6. A woman whose husband has abjured the realm, or 
14 * who * has been banished for life by act of parliament, may 
in all things act as a feme sale ; and may therefore make 
a will of her lands, (b) 

7. The two other disabilities, which are eipressly mentioned in 
the Statute of Wills, are idiocy, and nonsane memory, or limacy. 
But it should be observed, that every person who makes a will 
is presumed to be of sound understanding, till the contrary is 
proved ; so that the onus probandi lies on the other -side, (c) 1 , 

(a) Tit. 32, o, IS. (6) 1 Inst. 133 a, 3 Bulst. 188, Portland v. Prodgers, 2 Vern. 104. 
(c) Vide Att.-Gen. *. Parnther, 3 Bro. C. C. 441. 



same manner. In New Hampshire, a married woman may devise her real estate; but 
not to affect injuriously the rights of her husband. In Maine, Connecticut, Pennsylvania, 
and Illinois, married women are in express terms included among the persons author- < 
ized to dispose of their own estates by will, without restriction. In Ohio, the general 
language of the statute is understood to include married women ; who are therefore 
held capable of 'devising. Allen v. Little, 5 Ham. 65. In several other States, the 
language of the statute is equally general, giving the power of disposing estates by will, 
to "every person," or "all persons," of full age and sound mind; but whether this 
general language has been adjudged to include married women, is not certainly known.~ 
By the former statutes of Massachusetts and New Hampshire, this power was given to 
" every person lawfully seised,", &c. ; but it was, held not to include married women ; in 
the former State, as well because they were not seised, within the meaning of the 
statute, as on general principles ; but in New Hampshire, on the latter ground alone. 
Osgood v. Breed, supra ; Marston v. Norton, supra. 

See Mich: Rev. St. 1846, ch. 68, § 1; Misso. Rev. St. 1845, ch. 185, § 3; Ark. 
Rev. St. 1837, ch. 157, $2; Conn. Rev. St. 1849, tit. 14, ch. 1, § 1; Pennsylvania 
Dunl. Dig. ch. 858, § 7; Mass. Stat. 1842, ch. 74; N. Hamp. Stat. 1845, ch. 169, $ 1 ; 
Maine Stat. 1848, ch. 73, § 3 ; Illinois Rev. Stat. 1839, p. 686. 

In all the States, persons of full age and sound mind, legally capable of conveying 
their estates by deed, may dispose of them by will. 

Where a married woman has power, by an ante-nuptial settlement, or any other 
agreement, to dispose of her estate by will, or by a testamentary appointment in the 
nature of a will ; the instrument disposing of the estate must be proved as a will, in the 
Court having jurisdiction of the probate of wills, before it can be acted upon elsewhere. 
Osgood v. Bre*,d', 12 Mass. 533, 534 ; Picquet v. Swan, 4 Mason, 461, 462 ; Newbury^ 
port Bank a. Stone, 13 Pick. 423 ; Tappenden v. Welch, 1 Phillim. 353; Temple, v. 
Walker, 3 Phillim'. 394; West u. West, 3 Rand. 373; Ross, v. Ewer, 3 Atk. 1.60; 
Holman v. Perry, 4 Me. 496, 498. 

1 See to this point, Pettes v. Bingham, 10 N. Hamp. 514; Hoge v. Fisher, 1 Pet! 
C. C. R. 163; Stevens v. Vancleve, 4 Wash. 262; Brooks v. Barrett, 7 Pick. 99; 1 
Greenl. on Evid. § 42 ; Hix v. Whittemore, 4 Met. 545. [See a i s0 Cilley v. Cilley, 34 
Maine (4 Red.) 162; Cramer v. Crumbaugh, 3 Md. 491 ; Towns-hend v. Townshend, 
7 Gill. 10 ; Trumbull v. Gibbons, 2 New Jer. 117.] 



Title' XXXVIII. Devise. Ch. II. s. 8. 15 

8. "Where a devisor is under any of the disabilities before 
mentioned, at the time when the will is made, it is absolutely 



But if a state of insanity is once proved to exist, it is presumed to continue, and the 
burden of disproving it is devolved on the other side; unless the insanity appears to 
have been temporary in its nature, such as the delirum of a fever, or the like. Hix 
v. Whittemore, supra ; Stevens v. Vancleve, supra ; Jackson v. Van Dusen, 5 Johns. 
144; Kinloch v. Palmer, 1 Bep. Const. Ct. 216; 1 Greenl. on Evid. § 42; Halley v. 
Webster, 8 Shepl. 461 ; Black v. Ellis, 3 Hill, S. Car. Rep. 68. 

There is an apparent exception to this rule, in the case of the probate of a will ; but 
it will be found to be rather apparent than real. In such cases, the proceedings not 
being according, to the course of the common law, the onus prdbandi on this point is not 
technically presented ; but the issue is a complicated proposition, involving all the facts 
which the statute has made essential to a valid will, all which the executor in pro- 
pounding the will, affirms to exist, and therefore is bound affirmatively to show. This 
he does, in the matter of sanity, by the affinnative*answer, given in general terms by 
the attesting witnesses, to the formal question always put to them on such occasions, 
namely, whether, in their opinion, the testator was, at that time, of sound and disposing 
mind and memory. This slight proof, aided as it is by the legal presumption in favor 
of sanity, is sufficient to devolve on the other party the burden of proving the contrary. 
The opinions held by learned Judges on this point have been collected by Mr. Perkins, 
in a note to his last edition of Jarman on Wills, Vol. I. p. 72, which is here transcribed.- 
" In Brooks v. Barrett, 7 Pick. 98, 99, Parker, C.^T. said ; — ' By our Statute of Wills, all 
such instruments must be offered for probate in the Probate Court, and the subscribing 
witnesses are to be there produced ; and these witnesses are to testify, not only as to the 
execution of the will, but as to the state of the mind of the testator at the time.' 
Without such proof no will can be set up.. And this agrees with the English law on 
the same subject. Powell on Devises, 70 ; Wallis v. Hodgeson, 2 Atk. 56 ;" Barry 
v. Butlin, 1 Curteis, 637. -'Being proved, however, by the subscribing witnesses both 
as to its execution and the sanity of the#jgstator, the will is to be set up and allowed, 
unless the party objecting disproves the facts thus established. So that the burden of 
proof shifts from the executor to the heir, or other person opposing the allowance of 
the will ; but in this, as in all cases where there is an affirmative point to be made out 
by one party, he is to open and close to the jury. If his own evidence, that of the sub- 
scribing witnesses, is deficient, he is to make out the affirmative from the whole case ; 
if he makes out his case by the statute evidence, he has only to defend against the 
proof of insanity produced by the other party. And having produced the statute evi- 
dence, if the case is made doubtful by the evidence from the omer side, the presumption 
of law in favor of sanity must have its effect on the final decision. Buckminster v. 
Perry, 4 Mass. 395.' 

[The law on this point in Massachusetts has been revised in the recent case of 
Crowninshield v. Crowninshield, 2 r Gray, 524. The Court say : " When a will is 
offered for probate, to entitle it to such probate, it must be shown that the supposed 
testator had the requisite legal capacities to make the will, to wit, that he was of full 
age and of sound mind, and that in the making of it the requisite formalities have been 
observed. The heirs at law rest securely upon the statutes of descents and distribution, 
until some legal act has been done by which their rights under the statutes have been 
lost or impaired. 
" Upon whom, then, is the affirmative ? The party offering the will for probate says, 



16 Title XXXVIIL Devise. Ch. II. s. 8. 

void ; although the disability be removed before the death of the 
devisor ; for the party must be capable of- devising- at the time 
when the will is published. 



in effect, This instrument was executed with the requisite formalities by one of Ml age 
and of sound mind ; and he must prove it 5 and this is to be done, not by showing 
merely that the instrument was in writing, that it bears the signature of the deceased, 
and that it was attested in his presence by three Witnesses ; but also that it was signed 
by one capable of being a testator, one to whom the law had given the power of mak- 
ing disposition of his property by will. . . . .' ■ . 

"We can perceive* no shifting of the burden of proof; the issue throughout' is 
but one : Was the testator of sound mind ? And the affirmative of this was upon the 
party offering the will for probate. Again ;. that issue is an issue of fact, and is to the 
jury. And how is the Court to determine when the will. is ' proved ' or 'sufficiently 
proved '. by the subscribing witnesses, ' so that the burden of proof shifts from the , 
executor to the heir? ' It is a question of the effect of evidence, and could only be 
solved by probing the mind of each juror. Suppose the attesting witnesses are divided < 
in'opiniori ; one for the sanity of the testator, one against, the other doubtful ; or that 
two testify against the sanity of the testator, and the third that he was of sound mind, 
and the juvy place greater confidence in the means of observation, intelligence, judg- 
ment' and integrity of the one than of the other two ; or that all three testify (a case 
not without precedent), so far as it is matter of opinion, irr favor of the sanity of the 
testator, yet, in view of all the facts and the circumstances detailed, by the, same wit- 
nesses, the jury reach a very different conclusion. If there could be a shifting of the 
burden upon a single issue, it would be impossible to tell when the burden is to be 
transferred from the one party to the other. 

" It is quite difficult to understand what was meant by the Court when they said, that 
'if he [the executor] makes out his case by^the statute evidence, he has only to defend 
against the proof of insanity produced by the other party.' The law has made no fur- 
ther distinction between the attesting and other witnesses, than that the opinions of the 
former may be given in evidence} and even this distinction does not extend' to profes- 
sional witnesses. If the three attesting witnesses, being comparative strangers to the 
testator, and called in for the mere purpose of witnessing the will, testify that, so far as 
they saw, the testator was of sound mind?; and the attending physicians, familiar with 
the facts and with the history of the party, testify that he was insane; the law attaches 
no "peculiar weight to the testimony of the former as against the latter. Still less 
does it give it any such preponderance as to shift the burden of proof. The issue, after 
the evidence is all in, is pl-ecisely the same that it was at the beginning, — Was the tes- 
tator of sound mind 1 — an issue in its very nature incapable of division. 

" Nor does the existence of a general presumption that men are sane change the 
burden of proof. It may stand in the stead of proof; it may make & prima facie case; 
where the question of sanity is made, it may render necessary greater weight of evi- 
dence in him who seeks to impeach it; but it does not change the burden of proof. 
But when the evidence is in, on the one side and the other, the issue still continues as 
before : and he, to whose case the proof of such sanity is necessary, has the burden. 
To use the language of the Court in Powers v. Russell : ' Where the proof on both 
sides applies to one and the same proposition- of fact, the party, whose case requires the 
proof of that fact, has all along the burden of proof; though the weight in either Bcale 
may at times preponderate.' 13 Pick. 76. 



Title XXXVIII. Devise. Ch. II. s. 9. V7 

9. A man of full age declared, in the presence of several wit- 
nesses, that his will, made when he was under age, should 

" But we are by no means satisfied that, in relation to wills, there is any legal pre- 
sumption, in this Commonwealth, of the sanity of the testator. If such presumption 
exists, no proof that the testator was of sound mind would be necessary, until those 
opposing the will had offered some evidence to impeach it. The presumption of sanity 
would be sufficient, until there was something to meet it. Yet our cases uniformly hold 
that the party seeking probate of the will must produce the attesting witnesses to show 
not merely the execution of the instrument, but the sanity of the testator at the time of its 
execution. And such has been, we think, the uniform practice in the Probate Courts, and 
in this Court sitting as the Supreme Court of Probate. These cases were decided, and 
this practice grew up, under the explicit language of the stat. of 1783, ch. 24, § 1, which 
provided that 'every person lawfully seised of any lands, &c, of the. age of twenty-one 
years and upwards, and of sane mind, shall have power to give, dispose of and devise 
the same.' The language of the Revised Statutes is to the same effect : ' Every person 
of full age and of sound mind.' Rev. Sts. ch. 62, §§ 1,5. 

" There are strong reasons why the same presumption as to sanity should not attach 
to wills as to deeds and ordinary contracts. Wills are supposed to be made in extremis. 
In point of fact, a largejproportion of them are made when the mind is to some extent 
enfeebled by sickness or old age. It is for this reason that the execution of the will 
and the proof of its execution are invested with more solemnity ; the statute requiring 
it to be attested by three or more competent witnesses ; making void all beneficial 
devises, legacies or gifts to such subscribing witnesses ; and requiring the presence of 
the three in the Probate Court for its proof, unless it appears by consent in writing of 
the heirs at law, or other satisfactory evidence, that no person interested intends to 
object to the probate of the will. Rev. Sts. ch. 62, §§ 6, 8, 15. We speak of what 
seems to be the rale in this Commonwealth, under the stat. of 1783, ch. 24, and the 
Rev. Sts. ch. 62. 

" There is, no doubt, conflict and confusionin the authorities on this point, both 
in England and in this country. A general legal presumption doubtless exists, that a 
man is sane, till there is evidence to the contrary ; and upon proof of the execution of 
a contract, or of a deed, no proof need be given that the maker was of sound mind 
when he executed it. The presumption is sufficient, until evidence is produced to 
meet it. This presumption has often been applied to the proof of wills, but not in our 
own courts. Nor is the rule elsewhere uniform. 

" If there were uniformity in the English decisions, which there certainly is not, we 
should not overlook the difference between the English Statute of Wills, 34 Hen. 8, 
ch. 5, and our own. Our own provides that 'every person of full, age and of sound 
mind ' may make a will ; making these capacities of full age and sanity, of the nature 
of conditions precedent. The St. of Hen. 8, enacts, in § 4, that ' all and singular 
person or persons having estate or interest in fee simple, &c, in lands, &c, shall have 
full and free liberty, to give, dispose, will or devise to any person or persons, &c, by 
his last will and testament in writing, as milch as in him of right is or shall be, his said 
lands, &c., at his own free will and pleasure ; ' and then, by § 14, provides that ' wills 
or testaments made of any lands, &c, by any woman covert, or person within the age 
of twenty-fine years, or by any person de nonsane memory, shall not be taken to be 
good or effectual in the law ; ' thus making, in the first place, a, general provision 
applicable to all persons whatsoever, and then excepting out of its operation, and mak- 
ing ineffectual, wills of persons of nonsane memory. If, therefore, it were the uniform 

2* 



18 Title XXXVIII. Devise. Ch. II. s. 9. 

stand ; it was however ' adjudgedfthat the will was void, on 
account of the infancy of the devisor at the time of the first 

construction of this statute that when a will was -produced, and its due exeoution 
proved, it was to be taken to be good and effectual, unless for some of the causes stated 
in the fourteenth section it was shown not to be good or effectual, it would furnish no 
precedent for the construction of our own statute, which in terms limits the power to 
persons of full age and sound mind. 

" On the whole matter, we are of opinion, that where a will is offered for probate, 
the burden of proof, in this Commonwealth, is on the executor or other person seeking 
such probate, to show that the testator was, at the time of its execution, of sound mind ; 
that if the general presumption of sanity, applicable to other contracts, is to be applied 
to wills, it does not change the burden of proof; that, the burden of proof does not 
shift in the progress of the trial, the issue throughout being one and the same ; and that 
if, upon the whole evidence, it is left uncertain whether the testator was of sound mind 
or not, then it is left uncertain whether there was under the statute a person capable of 
making the will, and the will cannot be proved."] 

"In Gerrish v. Nason, 22 Maine, 438, 440, 441, Whitman, Ch. J., said: 'The 
power to make wills, and the manner of executing them, and their efficacy, depend 
upon certain special provisions of statute law. One of which is, that every person of 
sound mind, and of the age of twenty-one years, may disposf of his estate by will.' 
' The presumption, that the person making a will was, at the time, sane, is not the 
same as in the case of making other instruments ; but the sanity must be proved.' In 
Barry v. Butlin, 1 Curteis, 637, Mr. Baron Parke said : ' The strict meaning of the 
term ' onus probandi' is this, that if no evidence is given by the party on whom the 
burden is cast, the issue must be found against him. In all cases this" onus is imposed 
on the party propounding a will : it is in general discharged by proof of capacity, and 
the fact of execution.' In Harris v. Ingledew, 3 P. Wms. 93, Sir Joseph Jekyll, M.R., 
said : ' It must be observed, that the proof of a will is attended with more solemnity 
than that of a deed ; the former being supposed to be made when the testator is in ex- 
■'trends, and therefore in equity it is necessary to prove the sanity, which is all pre- 
sumed in the case of the latter.' ' Sanity is the great fact which the witness to a will 
has to speak to, when he comes to prove the attestation, and this is the true reason why 
a will can never he proved as an exhibit viva voce in chancery, though a deed may be ; 
for there must be liberty to cross-examine as to sanity.' Shelford, Lunacy, 283, 284 ; 
Hindson v. Kersey, 4 Burn, Eccl. Law, 102. In conformity to this doctrine, it was 
-said by Lord Chancellor Hardwicke, (Wallis v. Hodgeson, 2 Atk. 56,) that it had been 
determined over and over again in the Court of Chancery, that it must be shown, that 
the devisor was of sound and disposing mind when a will was to be established as to 
real estate ; proving that it was well executed, according to the Statute of Frauds and 
Perjuries, was not sufficient.' 

" In Comstock v. Hadlyme, 8 Conn. 261, Williams, J., said : ' The real question to 
be tried was, whether there was a valid will ; and this question was to be decided in 
the same manner as if it had not been decided in the Court of Probate. Those who 
claim under' the will must, therefore, take upon themselves the burden of proof; and 
they must not only prove that the will was formally executed, but that the testator was 
of a sound and disposing mind.' See Harrison v. Rowan, 3 Wash. C. C. 582. 

"It is extremely difficult to reconcile all the observations of learned Judges on this 
point. In Pettes v. Bingham, 10 N. Hamp. 515, Parker, Ch. J., said : 'It is probably 
.usual, in Probate Courts, upon proof of a will, to inquire of the subscribing witnesses 



Title XXXVIII. Devise. Ch. II. s. 9—12. 19 

publication. But if the will had been republished, after the 
devisor attained his full age, it would have been good, (a) 

10. It is the same, where a married woman makes a will, and 
afterwards becomes a widow ; for the will was void in its incep- 
tion, (b) 

11. Thus, it is said by Lord Keeper Wright, that if a will is 
made by a feme covert, of lands of inheritance, to J. S., and the 
baron dies, and then the wife dies, though her intention is plain, 
and though after the decease of the baron, when she became 
sui juris, she might have devised the lands to J. S., or by a re- 
publication have made the former will good, yet it was not 
relievable in equity, (c) 

12. It is laid down by Lord Ch. J. Trevor, that if a man be 

(a) Hawe v. Burton, Comb. 84. 1 Salk. 238. (6) 11 Mod. 157. (c) 2 Vern. 475. 

whether the testator was of a sound and disposing mind ; but it seems to be well set- 
tled, that every man is presumed to be sane, until there is some evidence shown to rebut 
that presumption.' 

"In Chandler v. Ferris, I Harrington, 454, 461, Clayton, Ch. J"., remarked : 'We 
are not to be governed by the question, who affirms or who denies the issue, but where 
is the onus p-obaridi. The burden here is upon the caveators ; they da not deny the 
execution of the will, but set up insanity and such an influence exercised by others 
over the testator's mind as will vitiate the will. After the formal proof of the paper, 
the executor might fold his arms until the caveators produced something to overthrow 
his case, which is prBia facie established by the production of the will and the inference 
of law in favor of sanity.' 

" In Sloan v. Maxwell, 2 Green, Ch. 580, it is said to be » fixed principle, ' that 
whenever the formal execution of a will is duly proved, he who wishes to impeach it 
on the ground of incompetency, must support, by proof, the allegation he makes, and 
thereby overcome the presumption which the law raises of the sanity of the" testator.' 

" On a trial where the sanity of the testator is in question, the party setting up the 
will goes forward and has the opening and close. Comstock u.Hadlyme, 8 Conn. 261 ; 
Brooks v. Barrett, 7 Pick. 94 ; Ware v.' Ware, 8 Greenl. 42 ; Phelps v. Hartwell, 1 
Mass. 71, 73, and note ; Buckminster v. Perry, 4 Mass. 593. 

"But in Delaware, the party alleging the insanity of the testa{pr has the opening 
and close, where he does not deny the formal execution of the will. Chandler v. Fer- 
ris, 1 Harrington, 460, 461 ; Bell v. Buckminster, and Cubbage v. Cubbage, lb. notes. 

" On an appeal from the ordinary to the Court of Common Pleas, in South Caro- 
lina, in the case of a will, the matter is not to be tried de novo. The appellee having 
the decision of the Court below in his favor, his rights are held to be fixed. The appel- 
lant files a suggestion, setting forth the proceedings in the ordinary's court, and then 
assigns specifically the supposed errors of the judgment of that Court. The appellant 
becomes the actor ; he affirms the truth of the issues, whether on the question of sanity 
or otherwise, and has the opening and close, in the evidence and argument. Souther- 
lin v. M'Kinney, Kice, 35; Tillman v. Hatcher, Bice, 271." See also 1 Greenl. on 
Evid. § 77. 



20 Title XXX'VIII. Devise. Ch. II. s. 12—15. 

non compos, and not in his right mind, at the time of making 
his will, though he afterwards, never so long before his death, 
becomes a man of understanding, and sound judgment and 
memory, yet ,the will is void, and can by no means be made 
good, because he wanted the . disposing power at the time of 
malting the will, (a) 

13. All natural persons, who are in esse at the time when a 
will is made, and who are capable of acquiring- lands by pur- 
chase, such as'infants, &c, may be devisees. 

14. It was formerly much doubted, whether an unborn 
15* infant, *but in ventre matris, could be a devisee in a 
will. It is, however, now settled, that such a devise is 
good. 1 

15. A person devised to his brother Henry Clarke and his 
assigns, for his life, remainder to the use and behoof of all and 
every such child or children of his said brother as should be 
living at the time of his decease.. Henry Clarke died, leaving 
several children, and his wife pregnant, who was delivered seven 

(a) 11 Mod. 157. 



1 Posthumous children are recognized as entitled to inherit ; and'by parity of reason 
may be devisees. Such, therefore, is now the settled law in the United States, as well 
as in England. See ante, tit. 16, ch. 4, § 13, note ; tit. 29, ch. 2, § 10, note. [Hone v. 
Van Schaick, 3 Barb. Ch. R. 488.] 

In many of the United States, provision is made by statute, for the case of children, 
born after the making of the will, bnt before the death of the testator, who have not 
been advanced by him, and for whom no provision ha% -been made in the will ; their 
case being apparently one of unintentional pretermission. These are, in those States, 
entitled to receive their distributive share Of the estate, in the same manner as if the 
testator had died intestate ; the share being made up by contribution among the de- 
visees. Such is the general course of legislation on this subject ; though the methods 
of carrying the provision into effect, and other details, and qualifications, are somewhat 
varied in the differeat States. See Maine, Rev. St. 1840, ch. 92,' § 18 ; Massachusetts, ■ 
Rev. St. 1836, ch. 62, § 21, 22 ; New Hampshire, Rev. St. 1842, ch. 56, § 9 ; Vermont, 
Rev. St. 1839, ch. 45, $ 25, 26 ; Rhode Island, Rev. St. 1844, p. 232 ; New York, Rev. 
St. Vol. II. p. 125, § 41, 3d ed. ; New Jersey, Rev. St. 1846, tit. 10, ch. 10, § 21 ; Vir- 
ginia, Tate's Dig. p. 892, 893; North Carolina, Rev. St. 1836, Vol. I. ch. 122, § 16-24. 
[Johnson v. Chapman, Busbee, Eq. 213 ; Dupree v. Dupree, lb. 164.] South Carolina, 
St. at Large, Vol. V. p. 107, 572; Ohio, Rev. St. 1841, ch. 129, § 43, 44; Michigan, 
Rev. St. 1846, ch. 68, § 25, 26 ; Kentucky, Rev. St. 1834, Vol. II. p. 1539, 1540, § 3 ; 
Indiana, Rev. St. 1843, ch. 30, $ 10; Illinois, Rev. St. 1839, p. 689, § 12; Missouri, 
Rev. St. 1845, ch. 185, § 11 ; Mississippi, Rev. St. 1840, ch. 36, § 3, 4 ; Arkansas, Rev. 
St. 1837, ch. 157, § 11, 12. And see 4 Kent, Comm. 524-526 ; 1 Jarm. on Wills, 107, 
note by Perkins. 



Title XXXVIII. Devise. Ch. II. s. 15—18. 21 



• 



months after of a daughter. The question, was, whether the 
posthumous child took any thing under this devise, (a) 

Lord Ch. J. Eyre said, it was plain, on the words of the will, 
the testator meant that all the children, whom his brother should 
leave behind him, should be benefited. But, independent of this 
intention, he held that an infant in ventre matris, who by the 
course and order of nature was then living, came clearly within 
the description of children at the time of his decease. Judgment 
was given accordingly. 

16. A married woman is not thereby disabled from being a 
devisee in a will. And although she cannot take any thing from 
her husband directly by deed, yet neither the custom of devis- 

, ing, nor the Statute of "Wills, disqualify a wife from being the 
devisee of her husband ; because the devise does not take effect 
till the death of the husband, by which the marriage is dissolved, 
and they cease to be one person, (b) 

17. Lord Hardwicke has said, there is no rule of law, or upon 
the Statute of Wills, to prevent an alien from taking by devise, 
although it is a matter of doubt for whose benefit be is enabled 
to take, (c) x 

18. A bastard may be a devisee' of land, but he must have 
gained a name by reputation ; and therefore a devise to a bastard, 
in ventre matris, is void, for he cannot have acquired a name by 
reputation till he is born, (d) 2 

(a) Doe v. Clarke, 2 Hen. Black. 399. 1 Bro. C. C. 320, S..C. 2 Ves. 673. Thellusson 
v. Woodford, i Ves. 334. 2 Veas. & Bea. 367. 
(J) Lit. s. 168. 1 Inst. 112 a. (4 Kent, Coram. 506.) 
(c) 2 Vez. 362. (2 Kent, Comm. 61.) 
{d) 1 Inst. 3 b. & n. 1. Metham v. Devon, infra, c. 10, § 35. 



1 In most of the United States, aliens are now capable of holding real estate for their 
own benefit. See ante, tit. 1, § 39, note ; Tit. 29, ch. 2, § 12, note ; Tit. 32, ch. 2, § 32. 
But in New York, an alien cannot take by devise, if he remain an alien at the death of 
the testator. New York Rev. St. "Vol. II. p. 118, § 4, (3d ed.) ; [Meakings v. Crowell, 
1 Selden, (N. Y.) 136; Wadsworth u.JMurray, 16 Barb. 601.] 

2 It is now settled, that a devise to an illegitimate child in ventre matris, without refer- 
ence to the father, is valid, if the mother is sufficiently described. Pratt v. Elamer, , 
5 H. & J. 10. And see Gardner v. Heyer, 2 Paige, 11; Beachcroft v. Beachcroft, 
I Madd. 234; 2 Kent, Comm. 217, (5th ed.) ; Earl v. Wilson, 17 Ves. 528. In this 
last case the principle of this rule is clearly expounded. 

"Where there are legitimate children to answer the description of 'children,' the 
rule of law is, that legitimate children only can take. Bayley v. Mollard, 1 Iluss. & 
My. 581 ; Frazer v. Pigott, 1 Young, 354; 2 Williams, Ex. (2d Am. ed.) 803 ; Shear- 



22 . Title XXXVIII. Devise. Ch. II. s. 19^20. 

• 

19. A devise to a. person uncertain, as, to such of the daughters 
of A as shall marry a man of the name of Norton, is good. And 
a devise to a person not in existence at the time when the will is 
made, as to the first son of A. B., who has then no son, may be 
good, by the way of remainder or expectory devise, (a) 

20. Bodies politic and corporate are expressly disabled by the 
statute 34 & 35 Hen. VIII. c. 5, s. 14, from taking by devise, in 
conformity to the spirit of the laws against mortmain. It was, 
however, formerly held, in consequence of the statute 43 Eliz. 

c. 4, in support of charitable uses, that a devise to a cor- 
16 * poration, *for a charitable use, was valid, as operating in 

the nature of an appointment. But now, by the statute 
9 Geo. II. devises to charitable uses are rendered void, with cer- < 
tain exceptions, (b) f 1 c 

(a) Bate v. Amherst, T. Raym. 82. Blackburn v. Stables, 2 Veas. & Bea. 367. (2 Jarm. 
on Wills, 259.) (S) Tit. 32, o. 2, {,35. 

man v. Angel, 1. Bai. Eq. 351 ; Wilkinson ». Adam, 12 Price, 470 ; Gardner v. Heyer, 
2 Paige, 11 ; Ram on Wills, ch. 6, p. 50, 51 ; Meredith i>. Parr, 2 Tounge & C. (N. S.) 
"V. Ch. 525. But natural children may take under this description, if the will 
itself manifests an intent to include theni in the term 'children,' either by express 
designation, or by necessary implication. Wilkinson v. Adam, 1 Ves. & Bea. 462; 
'S. C. 12 Price, 470. The proof of the intent to include natural children in the term 
'children,' must come from the will only; extrinsic evidence being inadmissible to 
raise a construction by circumstances, except for the purpose of showing that illegiti- 
mate children have, at the date of the instrument, acquired the reputation of the chil- 
dren of the testator, or the person named in the instrument. Wilkinson v. Adam, 

1 Ves. & Bea. 422; Swaine v. Kennerley, lb. 469; Gardner v. Heyer, 2 Paige, 11 : Col- 
lins v. Hoxie, 9 Paige, 88; Shearman u. Angel, 1 Bai. Eq. 351. See also Harris v. 
Lloyd, 1 Turn. & Buss, 310 ; Mortimer v. West, 4 Russ. 370; 2 Williams, Ex. (2d ed.) 

804. 805 ; 4 Kent, (5th ed.) 413, 414 ; Cooley v. Dewey, 4 Pick. 93 ; Brewer v. Blaugher, 
14 Peters, 178 ; Heath v. White, 5 Conn. 228. An illegitimate child may take by par- 
ticular description, before its birth. Dawson v. Dawson, Madd. & Geld. 292 ; Ev#.ns v. 
Massey, 8 Price, 22; Gordon v. Gordon, 1 Meriv. 141 ; 2 Williams, Ex. (2d Am. ed.) 

805, 806." 2 Jarm. on Wills, 93, (2d Am. ed.) note by Perkins. 

In South Carolina, a devise to the testator's concubine, or his bastard child, must not 
exceed one fourth of his clear estate, if he have also a lawful wife and children. S. Car. 
St. at Large, Vol. V. p. 271. • 

[ t It is now settled that the following testamentary dispositions to charities are 
• within the operation of the act of 9 Geo. 2, ch. 36, (namely) : I. Money charged on 
real estate. Arnold v. Chapman, 1 Veil; 108. II. Money produced by sale of real 
estate. Att.-Gen. v. Weymouth, Amb. 20; also 14 Ves. 364; 6 Mad. 71. III. The 
vendor's lien for purchase-money. Harrison v. Harrison, 1 Russ. & M. 71. IV. Terms 
for years. Att.-Gen. v. Graves, Amb. 155. V. Mortgages. Att.-Gen. v. Meyrick, 

2 Vez. 44 ; also Johnston v . Swann, 3 Mad. 457, 467. VI. Money given to exonerate 
land in mortmain. Corbyn v. French, 4 Ves. 418, 427 ; Waterhouse v. Holmes, 2 Sim. 



Title XXXVIII. Devise. Ch. II. $, 20. 23 

But the king, being both a Dody. politic and corporate, is inca- 
pable of taking by devise. 



162. VII. Money secured on turnpike tolls. Corbyn v. French, ubisup.; Knapp v. 
Williams, 4 Vez. 430, note. And VIII. Money secured on poor and county rates. 
Finch v. Squire, 10 Ves. 41. Thcrei arc the following exceptions to the operation of 
the above statute : I. Where the testator's direction to invest, in real estate, the money 
destined for a charitable purpose, is merely discretionary, and not imperative. Soresby 
v. Hollins, 1 Highmore, 174; Grimmett v. Grimmett, Arab. 210; Atf.-Gen. v. Goddard, 
1 Turn. & R. 348 ; and see Johnston v. Swann, ubi sup. II. Land or money to be in- 
vested in the purchase of land for the benefit of Queen Ann's bounty. 43 Geo. 3, c. 107 ; 
also 45 Geo. 3, t. 84, s. 3 ; Amb. 636 ; 3 Ves. 734. III. Devises and bequests for pro- 
moting the building, &c, of churches, &c. 43 Geo. 3, c. 108. IV. Devises by freemen 
accord.ing to the custom of London. 4 Bro. C. C. 409. V. Dcvis.es of real estate or 
money to be realized for the benefit of the two universities of Oxford and Cambridge, 
and the colleges of Eton, Winchester, and Westminster. Stat. 9 Geo. 2, c. 36, ss. 4, 5 ; 
Att.-Gen. v. Tancred, 1 Eden, 10; 3 Ves. 641 ; 1 Mer. 327. VI. Real and personal 
estate in Scotland. Stat. 9 Geo. 2, u. 36, =. 6; 1 Bro. C. C. 570; 16 Ves. 330. VII. 
Real estate in Ireland. 1 Bro. C. C. 271 ; 14 Ves. 537. VIII. Real estate in the West 
Indies and the colonies. 2 Mer. 143. IX. Money to be applied in melioration of lands 
in mortmain. Amb. 373, 651 ; 8 Ves.' 186 ; 4Russ. 342. X. Money to be laid out in 
erecting a monument. 1 Jac. R. 180. On the construction of the stat. 9 Geo. 2, c. 36, 
see 2 Rop. Leg. c. 19, (ed. 1828,) by the Editor of the present work.] 

1 In the United States it is understood, that every corporation, not expressly dis- 
qualified by statute, is capable of taking and holding real estate, as well by devise as 
by deed ; corporations being deemed " persons," within the meaning of the law. The 
only restrictions are, that the purpose of the conveyance be not foreign to the objects 
for which the corporation was created ; and that the value of its lands do not exceed 
the sum or value limited in its charter. 2 Kent, Comm. 283 ; Ante, tit. 1, § 40, note. 
And see Lumbard v. Aldrich. 8 N. Hamp. 31 ; Angcll and Ames on Corp. ch. 5 ; Rey- 
nolds v. Starks, 5 Ham. 205 ; 7 Cowen R. 540 ; 2 Cowen, R. 664. 

The only statute disqualifications which have been found, are these : — 

In- New York, corporations are expressly restrained from taking by devise, unless 
specially authorized by their charter. N. York Rev. St. Vol. II. p. 1 1 8, § 3, 3d ed. ; Theol. 
Seminary v. Childs, 4 Paige, 419,422; Wright v. Trustees M. E. Church, 1 Hoffm. 
Ch. R.*225 ; 4 Kent, Comm. 507. 

In Pennsylvania, corporations cannot take lands, " without the license of the Com- 
monwealth." Dunl. Dig. p. 567, ch. 447, § 1. 

In Florida, religious societies are enabled to hold "a quantity of land not exceed- 
ing ten acres " for the purpose of erecting buildings for public worship. Thomps. 
Dig. p. 279. 

In Georgia, persons desirous of havfng any church, camp-ground, academy, school, 
&c. (specifying divers other objects,) may receive corporate powers from the Courts ; 
but are prohibited from holding " any property, of any kind, except such as may be 
absolutely necessary to carry into effect the object of their incorporation." Geo. Rev. St. 
1845, p. 372. 

In some few other States, the right of corporations to hold any property is recognized, 
but not beyond the limit of value expressed in their charter. 



24 Title XXXVIII. Devise. Ch. II. s. 21—24. 

21. It is laid down by Lord Talbot, that when a person takes 
upon him to devise what he has no power over, upon a supposition 
that his devise will be acquiesced under, the Court of Chancery 
will compel the devisee, if he will take advantage of the devise, 
to take entirely, but not partially under it ; there being a tacit 
condition annexed to all devises of this nature, that the devisee do 
not disturb the disposition which the devisor has made, (a) 

22. A having two daughters, B and C, devised lands, whereof 
he was tenant in fee simple, to B, and lands of which he was only 
tenant in tail, to C. It was held, that if B claimed a share of the 
entailed lands, she must relinquish her claim to the fee simple 

lands devised to her: for the testator having disposed of 
* 17 * his whole estate amongst his children, what he gave 

them was upon an implied condition, that they should re- 
lease to each other, (b) 

23. A person, by articles previous to his marriage, agreed to 
settle lands to the use of himself and his wife for their lives, 
with remainder to the use of the heirs of their bodies. He after- 
wards made a settlement, which was not pursuant to the arti- 
cles • and on the marriage of his son, settled other lands on him 
in the usual manner, and levied a fine of the lands comprised in 
the articles, to the use of himself in fee. By his will he devised 
part of those lands to his daughters, and the rest of his estates to 
his grandson. Lord Talbot held, that the grandson, being enti- 
tled to the lands comprised in the articles, should be put to his 
election,! whether he would take under the will, or the arti- 
cles, (c) 

24. Where a will is void as a devise of land, either from the 
incapacity of the devisor, or from its not being duly executed, 
and is good as to personal estate, the heir may however take a 
legacy under it, without relinquishing his right by descent; be- 
ta) Forest, R. 82. 

(&) Noys v. Mordaunt, 2 Vern. 581. Bor v. Bor, 3 Bro. Pari. Ca. 167. Doe v. Cavendish, 
i Term Rep. 741. 
(c) Streatfield v. Streatfield, Forrest, 176. 

[t Upon the doctrine of election as connected with testamentary dispositions of real 1 
and personal estate, see 2 Roper's Legacies, ch. 23, ed. 1828.] (See also 2 Story Eq. 
Jur. ch. 30, and 1 Jarm. on Wills, ch. 15, 2d ed. by Perkins, where this doctrine is very 
fully discussed.) 



Title XXXVIII. Devise. Ch. II. s. 24—27. 25 

cause, as to the land, there is in fact no disposition of it, conse- 
quently no election. 

25. In the case of Hearle v. Greenbank, the daughter, by a will 
made when she was only nineteen years old, gave a legacy to her 
heir at law, and disposed of the real estate to another person ; 
the question was,, whether, as the will was void as to the land, 
and good as to the legacy, the heir should have the land, and also 
the legacy, or be obliged to make his election, (a) 

Lord Hardwicke declared his opinion, that the heir was not 
obliged to make his election, for the will was void ; and when the 
obligation arose from the insufficiency of the execution, or inva- 
lidity of the will, there was no case where the legatee was obliged 
to make an election, for there was no will of the land. A man 
devises a legacy to his heir at law, and his land to another ; the 
will is not well executed according to the Statute of Frauds, for 
the real estate ; the Court would not oblige the heir at law, upon 
accepting the legacy^ to give up the land. 

26. But where the heir becomes entitled to a real estate by 
descent, in consequence of its having been purchased after 

the * execution of his father's will, by which interests are * 18 
bequeathed to him, he cannot take both, but must make . 
his election, (b) 

27. P. Thellusson devised several real estates to trustees, upon 
trust to accumulate the rents to a certain period ; and directed, 
that in case he should enter into any contracts for the purchase 
of lands, and die before the conveyance thereof, such contracts 
should be carried into execution, and the conveyance be to his 
trustees, upon the trusts of this will. He also devised certain 
interests to his son. After the execution of his will, the testator 
contracted for the purchase of some real estates, and died without 
republishing his will. The heir claimed the lands contracted for, 
and also the interests given him by the will, (c) ^ 

Lord Erskine. — " The prayer of the bill, filed by the heir at 
law, with reference to this point, is, in effect, that the personal 
estate of the testator shall be applied to the completion of these 
contracts, directed by the will to be carried into execution for the 
benefit of the heir ; and that he, in opposition to the will, may 

(a) Tit. 32, 'c. 13. (6) Infra, c. 3. 

(c) Thellusson v. Woodford, 13 Ves. 209. Vide infra, a 20, \ 58. 

VOL. III. 3 



26 Title XXXVIII. Devise. Ch. II. s. 27. 

take as heir those estates so contracted for; and the trustees may 
stand seised to his use,' instead of the uses of the will. I give 
the judgment which I find myself bound to give, with some 
reluctance, considering this will as dictated by feelings not alto- 
gether consistent with convenience. But this appears to me to 
be a. case of election. The jurisdistion exercised by this Court, 
compelling election, may be thus described. A person" shall not 
claim an interest under an instrument, without giving full effect 
to that instrument, as far as he can. If therefore a testator, 
intending to dispose of his property, and making all his arrange- 
ments under the impression, that he has the power to dispose of 
all that is the subject of his will, mixes in his disposition prop- 
erty that belongs to another person, or property as to which 
another person has a right to defeat his disposition, giving to that 
person an interest by his will ; that person shall not be permitted 
to defeat the disposition where it is in his power, and yet take 
under the will : the reason is, the implied condition that he shall 
not take both ; and the consequence follows, that there must be 
an election : for though the mistake of the testator cannot affect 
the property of another person, yet that person shall not take the 
testator's property, unless in the manner intended by the testator- 
" This is the proposition. But it has been said, that 
19 * when a * testator by his will attempts to give that which 
is not his property, but which he supposes to be his*, form- 
ing his different dispositions upon that mistake, non constat what 
he would have done, had he been aware of the true state of the 
circumstances. The best answer to that was given by Lord 
Alvanley, in the case of Whistler v. Webster (a) — That no man 
shall claim any benefit under a will, without conforming, as far 
as he is able, and giving effect to every thing contained in it, 
whereby any disposition is made, showing an intention that such 
a th||g shall take place ; without reference to the circumstances, 
whether the testator had any knowledge of the extent of his 
power, or not. Nothing can be more dangerous than to speculate 
upon what he would have done, if he had known one thing or 
another. It is enough to say he had such intention ; and the 
Court will not speculate upon what he would have done in the 
different cases put. If the instrument is such as to indicate 

(a) 2 Ves. 367. 



Title XXXVEI. Devise. Ch. II. s. 27. 27 

what the intention was, the only question is, did he intend the 
property to go in such a manner ; not whether he had power to 
do so, and would have done it, had he known he could not, with- 
out a condition imposed upon another person. Whether he 
thought he had the right ; or, knowing the extent of his author- 
ity, intended by an arbitrary execution of power to exceed it ; 
no person taking under the will shall disappoint it. 

" In every case of election, there must be an intention to dis- 
pose of that, over which that person has no power of disposition ; 
that is the circumstance that creates election. The testator, with 
this peculiar object, the application of his personal estate to the 
acquisition of great landed property, was not aware of the dis- 
tinction between real and personal estate ; and therefore con- 
ceived, that under this direction of his will as to his future con- 
tracts for purchases, his trustees would be legally seised according 
to the uses of his will. As. he had not the power to make that 
disposition, the heir takes those estates that cannot pass by the 
will ; but the testator, not being aware of that, gives considera- 
ble interests to his heir : but gives those interests under the con- 
ception that the whole property and arrangement were subject to 
his control ; and upon that ground the principle of election must 
prevail. 

" In Noys v. Mordaunt, (a) the testator imagined he had power 
over the estate which was in settlement, and the Lord 
Keeper *put the decision upon the implied condition. *20 
That case was followed by Streatfield v. Streatfield, (b) 
and several cases, down to Sheddon v. (Goodrich, (c) The diffi- 
culty, upon a plain simple principle, occurred in the case of 
Hearle v. Greenbank. (d) But I do not apprehend that this case 
will be embarrassed by that decision. Lord Hardwicke held, 
that the act of the infant had no effect ; that there was no dis- 
position as to the real estate; and therefore a case of election 
did not arise. 

" This is the case of a man having a clear right to dispose by 
will, both of his real and personal estate ; but his disposition 
fails as to these real estates, by his ignorance of J;he distinction, 
that a will of a subsequent date was necessary. There is, there- 
fore, as in the case of Hearle v» Greenbank, no will that can 
touch these real estates. As to the case of a devise with two 

(a) Ante, s. 24. (b) Ante, s. 25. (c) 8 Ves. 481. (d) Ante, s. 27. 



28 Title XXXVIII. Devise. Ch. II. s. 27—28. 

witnesses only, the intention is as plain as in Noys v. Mordaunt : 
why then should not the Court say, in the former case, the inten- 
tion is clear,' but cannot as to the real estate have legal effect, 
from the omission of a third witness by mistake : as in the other 
case, the divisor attempts, through mistake, to devise an estate 
which is in settlement, or belongs to another person ? The opin- 
ion of Lord Hardwicke I take to be this ; a devise of real estate 
is considered as a matter of so much solemnity and importance, 
that the law will not accept, proof of the act, without the evidence 
of three witnesses. If not so proved, it is nothing ; it cannot 
receive notice. The intention cannot be represented ; for it can- 
not be presumed, and there is no evidence : the will not being 
executed with the solemnity prescribed by the law, as to real 
estate, cannot be read : the Court cannot see any devise of real 
estate \ and therefore, as the estate does not appear to be devised 
away from the heir, no act appearing to be done, as in this case 
the act does appear to be done by Mr. Thellusson, the heir can- 
not, in that case be put to election. 

"The case of Hearle v. Greenbank stands. upon the same 
ground ; an infant, under^the statute 32 Hen. VIII., not having 
a right to dispose of real estate, the Court cannot look at the 
will. It is, from the incapacity of the person who frames it, con- , 
sidered as no instrument. 

" These are the only instances in which the' principle has been 
limited. It cannot be argued that it does not reach an heir at 
law. Lord Hardwicke would not put the case of an heir 
21 * at law, *by way of illustration, if the heir could not under 
any circumstances be put to election. The principle of 
election is plain and intelligible ; that if a person being about to 
dispose of his own property, includes in his disposition, either 
from mistake or not, property of another, an implication arises, 
that the benefit under that will shall be taken upon the terms of 
giving effect to the whole disposition. Mr. Thellusson's heir 
takes these estates, as if his father had not made a will ; but my 
opinion is, that he cannot also take what is given to him by the 
will. He mus^ therefore elect." (a) 

Upon an appeal to the House of Lords, the order was con- 
firmed, (b) 

28. Mr. Vesey, in a note to this case, observes, that the case of 

(a) See also Churchman v. Ireland, 1 Rus. & Myl. 250, et lb. 244. (J) 1 Dow, 249. 



Title XXXVIII. Devise. Ch. II. s. 28. 29 

a devise to the heir, of an estate which he would have by de- 
scent, if no will was made, and to another person, of an estate of 
which the heir is seised in his own right, is put by Sir S. Romilly 
as said to be a case of election ; and that Mr. Sugden had found a 
precise decision of the point accordingly, against the heir. Anon. 
Gilb. Eq. Rep. 15. And in that instance it might be observed, 
the heir took, not under the devise, but by his better title, descent. 
The devisor, however, devising the estate to him, must be con- 
ceived to be aware of his power to devise it away ; and the con- 
dition was accordingly implied, (a) 

(a) 9 Ves. 437. Forrester v. Cotton, 1 Eden, 532. 



30 



CHAP. III. 



WHAT MAY BE DEVISED. 



Sect. 1. Estates in Fee Simple. 

4. Estates for Lives. 

5. Chattels real. 

7. Trust Estates 

8. Lands contracted for. 

13. Mortgages. 

14. Equities of Redemption. 

15. Advowsons. 
17. Rents. 

19. Tithes. - 

20. Franchises. 



Sect. 23. Contingent Estates and In- 
terests. 
27. Jbmi Tenancies not devisable. 
,30. Nor Rights of Entry. - 

32. TAe Devisor must be seised 

or entitled. 
37. .ilrad musi continue seised or 
entitled. 

39. Exceptions. 

40. Tenancies escheated. 

41. And Terms for Years. 



Section 1. The proper subjects of a devise are reaZ estate; 
and the words used in the Statute of Wills are, " manors, lands, 
tenements, rents, or other hereditaments, in possession, reversion, 
or remainder ; " which extend to every species of real property, 
whether corporeal or incorporeal, (a) 1 

2. Not only estates in fee simple absolute, but, also determinable 
fees, and base fees, are devisable under these statutes ; the term, 
fee simple, being taken in its most extensive sense, (b) 

3. By the words of the statute 34 & 35 Hen. VIII. c. 5, s» 4, 
all persons, seised in fee simple, in coparcenary, or in common, 
may devise the estates which they hold in this manner. And all 
persons seised in fee simple, may also devise any rents, commons, 
or other profits, out of, or to be perceived of the same, or out of 
any parcel thereof, (c) 

(a) (Infra, '§ 37, note.) (A) 3 Bulstf. 184., 

(c) (George v. Green, 13 N. Hamp. 521; Osgood v. Breed, 12 Mass; 525.) 



1 In Pennsylvania, joint-tenancies are expressly made devisable, by the Statute of 
Wills. In Rhode Island, estates tail are also included in the enumeration of devisable 
estates ; but irr Maryland, they are excluded. See Dunlop, Dig. ch. 542, § 1, p. 570; 
E. Island Rev. St. 1844, p. 231 ; LL. Maryl. Vol. I. p. 370. 



Title XXXVIII. Devise. Ch. III. s. 4—8. 31 

4. The statute 34 & 35 Hen. VIII. only extends to estates in 
fee simple, and therefore did not enable persons to devise estates 
which they held pour autre vie. This was remedied by 

the * statute 29 Cha. II. c. 3, s. 12, by which it was enacted, * 23 
that any estate pour autre vie shall be devisable by will in 
writing, (a) 1 

5. As to chattels real, or term for years, they might always have 
been disposed of by testament, because they were only considered 
as personal estate. But where a person acquires a term for years 
as executor, he cannot devise it ; for immediately on his death it 
is to the use of the first testator, and his executors have it as ex- 
ecutors of the first testator, and to his use. (b) 

6. Whenever a term for years is devised, the consent of the ex- 
ecutor is necessary to complete the title of the devisee. But if a 
term be devised to A for life, remainder to B, the assent of the 
executor to the devise to A will operate as an assent to the de- 
vise over to B, and vest an interest in him accordingly, (c) 

7. As uses were the medium through which lands were origin- 
ally devisable ; so trust estates, which in fact are uses not ex- 
ecuted by the statute, are now devisable ; 2 but where a person 
has only an equitable interest in lands, his devise of them amounts 
to no more than a direction to those who have the legal estate in 
trust for him, to convey it according to the devise, (d) 

8. Where an agreement is entered into in writing for the 
purchase of lands, and, before ■ a conveyance of the legal estate 
is executed, the purchaser devises the lands so contracted for, 
and dies, such devise will be held good in equity : for, although, 
according to the strict rules of law, the devisor has not lands 
within the Statute, of Wills, till a conveyance of the legal estate is 
executed ; 3 yet from the time when the agreement was signed, 

(a) Gawen v. Eamtes, Cro. Eliz. 804. (J) Bransby v. Grantham, Plowd. 525. 

(c) Wentw. Ex. e. 2, 19; 10 Kep. 4?, b. (<Z) Tit. 12, c. 1; 2 P. Wims. 258. 

1 This provision has been enacted in several of the United States; and in others it is 
involved in the general terms of the Statutes of Wills. 

2 As to the power of a trustee to devise the trust estate, see ante, tit. 12, ch. 2, § 9, 
note; 4 Kent, Comm. 538, 439; 2 Jarm. on Wills, 714-718, Perkins's ed. 

3 Equitable, contingent, and reversionary interests, and possibilities coupled with 
an interest, are generally devisable in the United States, under the general language 
of the Statute of Wills, in most of the States. See infra, § 37, note ; 4 Kent, 
Comm. 512, 513. Thus, in Maryland, an equitable interest has been held devisable'. 
Carroll v. Norwood, 5 H. & J. 162. So, a possibility of a legacy's vesting. Spence v. 



32 Title XXXVIII. Devise. Ch. III. s. 8—10. 

the vendor is considered to be seised only in trust for the pur- 
chaser, who in equity is deemed the real owner of the lands, and 
therefore is allowed to devise them. [The will cannot of course 
operate so as to pass the legal estate, which will either descend 
to the heir at law of the vendor, or pass under a general devise 
of his trust estates.] (a) 

9. Where an agreement for the purchase of land is not to be 
carried into execution till a future day, and before that day the 
purchaser makes his will, the lands so agreed for pass by such 

will. 

10. By articles, dated in April, 1706, it was agreed between 
the vendors, and the agent of the purchaser, that the possession 
of the lands, agreed to be purchased, should be delivered at the 

Michaelmas following, and proper conveyances executed; 
24 * and * the agent covenanted that the purchase-money 

should be paid, when possession was delivered. In June 
following, the purchaser . made his will; and the question was, 
whether these lands passed by it. (b) 

Lord Cowper decreed that they did ; and upon an appeal to 
Lord Keeper Harcourt, it was argued by Sir Joseph Jekyll and 
Mr. Howe, that this decree ought to be reversed. They took a 
distinction between an agreement for the immediate purchase of 
lands, and such an agreement for the future purchase thereof, as 
this was ; they agreed, that if the articles had been for the pre- 
sent purchase, of the lands, the vendor would immediately have 
become a trustee for the purchaser ; and then a devise of them 
would have been good in equity ; but here the possession was 
not to be delivered till Michaelmas following, nor was any money 
to be paid before that time ; and then the purchaser had no power 
to devise them sooner. 

(a) Cha. Ca. 39. 9'Mod. 78. (Livingston v. Newkirk, 3 Johns. Ch. 312, 316.) 
(6) Greenhill v. Greenhill, Prec. in Cha. 320. (JTKinnon v. Thompson, 3 Johns. Ch. 307, 
810.) 



Robins, 6 G. & J. 507. So, in New Jersey. Den v. Mariners, 1 Spencer, 142. [So 
in South Carolina. Schmidt v. Schmidt, 7 Rich. Eq. 201.] In Massachusetts, a 
reversionary and contingent interest ; Austin v. Cambridgeport, 2 Pick. 215; though 
expectant on the determination of an estate tail. Steel v. Cook, 1 Met. 281. In 
New York, a power to sell lands, coupled with an interest. Wright v. Trustees M. 
E. Church, 1 Hoffm. 204. In Delaware, the interest of a devisee, expectant after 
an executory devise. Kean v. Eoe, 2 Harringt. 103. 



Title XXXVIII. Devise. Ch. III. s. 10—12. 33 

On the other side it was said, in support of the decree, that 
these lands were bound, immediately from the execution of the 
articles ; that the possession not being to be delivered till a 
future time, made no difference in equity ; that if the purchaser 
had- died before Michaelmas, the equity would have descended to 
the heir ; and he might have brought a bill against the executors 
to compel the payment of the purchase-money out of the per- 
sonal estate. 

Lord Keeper Harcourt said he saw no reason to vary the 
decree ; he thought that such future interest was devisable, 
as well as if it had been in possession; that the lands and 
money were mutually bound by the articles ; and affirmed the 
decree. 

11. Even a parol agreement for the purchase of lands, which 
is admitted, so as to be binding on the parties, notwithstanding 
the Statute of Frauds, will vest such an interest in the purchaser, 
as he may devise by will, (a) 

12. In the year 1743, a parol agreement was made between 
Mr. Brown, as agent for Mrs. Hughes, and Messrs. Potter and 
Westley, as agents for the archbishop of Canterbury, for the 
purchase of an estate in the Isle of Wight. The plan and par- 
ticulars of the estate were delivered to Westley, and on the 7th 
June, 1744, the parties met ; a price was fixed, and it was agreed 
by parol, that the purchase should be completed the 

* Christmas following. In July, 1744, the title-deeds were * 25 
delivered to Westley to abstract, and deliver to the pur- 
chaser's counsel, which was done in April, 1745. The further 
proceeding was interrupted by a claim of one Huxley to part of 
the estate ; a bill was filed, and it was referred to the master to 
inquire into the contract, who reported, in February, 1746, that 
it was a beneficial one ; and the next day Westley received in- 
structions from the archbishop to draw the conveyances, which 
he did, and which were approved of on behalf of the arch- 
bishop ; on the 17th September, 1746, they were . carried to the 
archbishop, who returned them to b>e engrossed, and they were 
actually engrossed in his lifetime, but were not executed, as 
intended, (b) 

The archbishop had made his will in 1745,- and on the 10th 

(a) Tit. 32, e. 3. 

(6) Potter v. Potter, 1 Vez. 274, 437. Langford v. Pitt, (2 P. Wras. 629, infra, § 38.) 



34 Title XXXVIII. Devise. Ch. III. s. 12—16. 

April, 1747, long after this agreement, be made a codicil, rati- 
fying and confirming his will; and the question was, whether 
the estate, thus agreed for, should pass by his will and codicil, (a) 
The Master of the Eolls (Sir J. Strange) said, one circum- 
stance was wanting; .the reducing, the agreement into writing, 
according to the Statute of Frauds ; which if done in 1744, the 
estate would certainly be considered as the archbishop's, in 
equity, from that time. But though an agreement was not 
reduced into writing, and signed by the party, yet it was well 
known that if confessed, or in part carried into execution, it 
would be binding on the parties, and here was the fullest ad- 
mission thereof. And as the will was republished by the codicil, 
it would pass this estate, (b) 

13. If a mortgagee devises the lands mortgaged, before the con- 
dition is broken, it will be void (as a devise of the lands) ; be- 
cause a condition is not devisable. But an estate in mortgage 
may be devised after the condition is broken ; and in such a case, 
if the devisee exhibits his bill against the mortgagor, to foreclose 
him, a decree will be made accordingly, (c) 1 

14. An equity of redemption, being in some respects < similar 
to a trust estate, has always been considered as devisable. And 
in 12 Cha. II. it was determined by the Court of Chancery, that 
where a person seised in fee had mortgaged his estate, and after- 
wards devised it, the equity of redemption should go to the 

devisee, not to the heir", (d) 
26 * * 15. An advowson appendant to a manor will of course 

pass by a devise of the manor. An advowson in gross 
being an, hereditament, is also devisable under the Statute of 
Wills ; and the next or any number of presentations may also be 
devised ; in which case, the devisee may either present himself, 
or any other person, (e) 

16. Where the incumbent of a church had the inheritance of 
the advowson in him, and devised the next presentation, it was 
held good : for though the will had no effect till the death of 

(a) Cave v. Cave, 2 Eden, 139. (6) 7 Ves. 274. 10 Ves.' 605.' 12 Ves. 197. 

in) Tit 15, c, 2. (d) Tit. 15, o. 3. Philips v. Hele, 1 Cha, E. 101. 

(e) Tit. 21. Cleer v. Peacock, Cro. Eliz. 359. Law v. Epis Lincoln, 2 Black. E. 1240. 



1 The legal estate is not devisable by the mortgagee, until foreclosure. Infra, ch. 
10,5135. 



Title XXXVIII. Devise. Ch. III. s. 16—23. 35 

the devisor, yet it had an inception in his lifetime, and that 
made it good, (a) 

17. A rent charge is devisable, by the words of the statute 
34 & 35 Hen. VIII. ; but it was formerly doubted, whether a rent 
charge in esse, issuing out of gavelkind lands, and having com- 
menced within time of memory, was within the custom of devis- 
ing ; nor was it settled to be so, till the time of Lord Hale, (b) 

18. As to a rent service, it of course followed the nature of 
the reversion or seigniory to which it was incident; nor was 
there any doubt as to the custom of gavelkind extending to other 
rents, if they had existed immemorially. (c) 

19. Tithes impropriate in lay hands are comprehended under 
the general word hereditaments, in the Statute of Wills, and are 
therefore devisable, (d) 

20. Lord Coke says, that hereditaments, which are not of 
any yearly value, cannot be devised ; and therefore, if the 
King grants bona et catalla felonum, waifs, estrays, or any other 
kind of franchises which are not of an annual value, they are 
not devisable.' But that franchises of a certain value, and not 
restrained to the person of the grantee and his heirs, may be 
devised, (e) 

21. Franchises, though not of an annual value, will, however, 
pass by a devise, as appurtenant to other things of an annual 
value. 

22. Thus, in Butler and Baker's case it is said, if a man, seised 
of a manor, to which court-leet, waif, estray, or any other hered- 
itament which is not of any annual value is appendant, or 
appurtenant, devises the manor with the appurtenances, these 
shall pass as incidents to the manor. (/) 

23. An opinion formerly prevailed, that neither contingent re- 
mainders, nor any other contingent estates, or interests in 
land, * could pass by a will made previous to their vesting ; * 27 
but in the following cases they have been held to be de- 
visable, (g-) 1 

(a) Penehyn v. Harris, Cro. Jac. 371. • 

(J) 1 Inst. Ill, a, n. 5. 1 Mod. 112. Eob. Gav. 79. (c) Idem. (d) Tit. 22. 

(e) 1 Inst. Ill, b. 3 Eep. 32, b. (/) 3 Eep. 32, b. 

(g) Fearne, Cont. Rem. 547. Ed. 8. 

1 See, accordingly, supra, § 8, note, and cases there cited. Shelby v. Shelby, 6 Dana, 
60 ; Crnger v. Hayward,.2 Desau. 422. 



36 Title XXXVIII. Devise. Ch. III. s. 24—25. 

24. John Selwyn being tenant for life, with remainder to his 
son John in tail ; the father and son joined in a deed of bargain 
and sale, dated 20th April, 1751, to make a tenant to the pracipe, 
for the purpose of suffering a common recovery ; the uses of which 
were declared to be to the father for life, remainder to his son in 
fee. Trinity term began that year on the 7th of June, and on 
the 8th, John, the son, made his will, whereby he disposed of all 
his real estates ; in the same term a writ of entry was sued out, 
returnable quinden. trin., which was the 17th June, and the re-, 
covery was completed the said term. John Selwyn, the testator, 
died soon after the return of the writ of entry ; and the question 
was, whether the lands comprised in the recovery passed by the 
wih\ it having been made before the return-day of the writ of 
entry, (a) 

It was contended, that the testator had only a future executory 
use, at the time of making Ms will, not a present use ; for the 
statute could not draw the estate to the use, till the possibility, 
that is, the completion of the recovery, had actually happened ; 
and that this future executory use was not devisable. 

The Court of King's Bench certified their opinion to the- Court 
of Chancery, that the lands passed by the will ; and Lord Mans- 
field, in a subsequent case, is reported to have said, that if the 
practice of the Court allowed him to give his reasons, he was 
prepared to have shown, with the concurrence of his brethren, 
that all contingent, springing, and executory uses, where the per- 
son who was to take was cerfainfi so that the same might be 
descendible, were devisable, (b) 

25. The doctrine laid down by Lord Mansfield, has been fully 
confirmed in the two following cases. 

Sir James Grubb devised all his real estates, in trust for his 
son James ; and if he should die without issue, under age, then. 

(a) Selwyn v. Selwyn, 2 Burr. 1131. 1 Black. E. 222, 251. (S) 1 Black. R. 606. 



[t But where the person is uncertain, the ^state cannot be devised while the uncer- 
tainty continues. Thus if lands are given to the survivor of two or more persons in 
fee, or to two or more for life, with a power for the survivor to dispose of the lands by 
will ; such expectancy cannot be devised by a will made by the one (in the lifetime of 
the others) who may happen to become the survivor; for until the survivor is ascer- 
tained, by the death of his companions, the person, and not the estate is in contingency. 
Doe v. Tomkinson, 2 Mau. & Sel. 165; 2 Pres.. Con. 270.] 



Title XXXVIII. Devise. Ch. III. s. 25—26. 37 

that all his estates should go to Cochran, his heirs and 
assigns. * Cochran devised all the estates whereof he was * 28 
seised in possession, remainder, or reversion, to the plain- 
tiff, and died in the lifetime of James Grubb, the son; who after- 
wards died under age, and without issue, (a) 

On a bill brought by the devisee of Cochran, a question was 
made, whether the possibility, given to Cochran, was devisable. 

Lord Northington. — " I never had any doubts, since I was 
twenty-five years old, but that these contingent interests were 
devisable, notwithstanding some old authorities to the contrary. 
I sent the question, however, into the King's Bench, in the case 
of Selwyn v. Selwyn, for the satisfaction of the parties ; and the 
certificate of the Judges implies, I think, that they agreed with 
me in this opinion." Upon which the Solicitor-General, De Grey, 
and Mr. Skinner, waived all further argument on the other side; 
and Lord Northington added, — " This argument is properly with- 
drawn, as the point is settled, and ought not to be shaken. It is 
a liberal and right determination." 

26. A testator devised his dwelling-house, &c, to his brother, 
T. L., till his (T. L.'s) youngest son, I., or any other of his younger 
sons, should attain the age of twenty-one years. And in case he 
should have no younger son who should attain that age, but only 
one son that should attain it, then till such only son should attain 
that age. And when his said nephew I., or any other of the 
younger sons of the said T. L., should attain the age of twenty- 
one years, then he gave his said dwelling-houses, &c, unto his 
said nephew I., or unto such other son as for the time being 
should be a younger son of his said brother T. L., and should, 
first attain his age of twenty-one years, and to the heirs and 
assigns of such younger son forever ; [but if his said brother,, 
T. L., should have but one son that should live to attain the 
said' age, then the testator gave the same to such only son, his 
heirs and assigns, forever.] The testator left his said brother, 
his heir at law, and T. arid the said I.,the sons, and only issue 
of his said brother. I. died under twenty-one years of age ; and 
afterwards T., in the lifetime otf his father, T. L., made his will, 
and devised " all his worldly estate, of what nature or kind so- 
ever, whether in possession, remainder, or reversion, that he 

(o) Moor v. Hawkins, 1 H. Black. K. 33. 2 Eden, 342. 
VOL. III. 4 



38 Title XXXVIII. Devise. £h. III. s. 26—27. 

should die seised or possessed of, interested in, or entitled to, 
invested in, or should belong to him at his decease, where- 
29 * * soever or howsoever, in any manner or "wise," unto his 
wife in fee. (a) 

Upon this case three questions arose. First, whether there 
was a vested interest in T. ; secondly, whether if. it was con- 
tingent, it was devisable ; and thirdly, whether it passed by the 
will. 

Lord Loughborough said, the discussion of the first question 
was unnecessary ; for taking it to be a springing contingent ex- 
ecutory use in T., they were all of opinion that it was devisable, 
and passed by his will. 

Upon a writ of error in the Court of King's Bench, the decis- 
ion of the Court of Common Pleas was confirmed ; and Lord 
Kenyon observed, that the statute for enabling persons having- 
any manors, lands, etc., to devise, must mean, having an interest 
in the lands. He distinguished between such a contingent interest 
and a mere possibility, like that which an heir has from his ances- 
tor ; which was nothing more than the hope of a succession, and 
was not subject to disposition ; and he hoped that the point 
would be considered to be fully at rest. (6) 

Ashhurst, J., said, the plain meaning of the statute was, that 
e.very person who had a valuable interest in lands, should have 
the power of disposing of it by will. 

Buller* J., observed, that if it was such an interest as was 
descendible, it seemed strange to say, it was not also devisable ; 
that they must both be governed by the same principle ; and that 
it was a sound distinction which had been taken by the Chief 
Justice, between a bare possibility, and a possibility accompanied 
with an interest. 

Grose, J., remarked, that the 4th section of 34 & 35 Hen. VIII. 
c. 5, which was explanatory of 32 Hen. VIII. c. 1, declared, that 
' all persons, having a sole estate or interest in lands, &c, might 
devise ; which did not include a bare possibility or hope of succes- 
sion, but a possibility accompanied with an interest, (c) 

27. Littleton says, if there be two joint tenants in fee of lands 

(a) Eoe v. Jones, 1 Hen. Black: Eep. 30, cited 17 Ves. 182. 
• (i) Jones v. Perry, 3 Term Rep. 8&. 
. (c) Perry v. Phelips, 1 Ves. 251. Scawen v. Blunt, 7 Ves. 300. 



Title XXXVIII. Devise. Ch. III. s. 27—30. 39 

devisable by custom, and one of them devises his share, it is 
void ; because no devise can take effect till after the death of the 
devisor ; and by that event the lands become immediately vested 
in the other joint tenant, by survivorship, (a) l 

28. In conformity with this principle, the statute 34 & 35 Hen. 
VIII. only enables persons, having a sole estate in fee 
simple, * or seised in fee simple, in coparcenary or in com- * 30 
mon, to devise, which excludes estates held in joint ten- 
ancy. And in Butler and Baker's case, (b) in 33 & 34 Eliz. it 
was laid down, that the law only considers what estate the devi- 
sor had at the 'time of making his will, without regard to any 
subsequent event ; from which it follows, and has been settled, 
that a devise by a joint tenant, who afterwards severs the joint 
tenancy, is void ; because the devisor was joint tenant when he 
made his will. 

29. Richard Gilbert and Frances Sophia Gilbert were seised 
of the premises in question, as joint tenants in fee. Richard 
Gilbert, on the 20th January, 1754, made his will, and thereby, 
devised in these words : " Imprimis, I give and bequeath all my 
part, right, title, and interest, which I have in an -estate jointly 
with my sister Frances Sophia Gilbert, to my wife Jane." After- 
wards, by indentures of lease and release, Richard Gilbert and 
his sister made a partition, and severed the joint tenancy : and 
the estate in question was conveyed to Richard in fee. The 
question was, whether the will was good as to this estate, (c) 

The Court was clearly and unanimously of opinion, that a will) 
made by a joint tenant, during the continuance of- the jointure) 
was not a good will, even as to a share of his estate, under the 
Statute of Wills, notwithstanding a subsequent severance of the 
joint tenancy, by a partition, unless there was a republication of 
it after the partition. 

30. "Where there is a tenant for life, with a vested remainder, 

(«) Tit. 18, t . 2. (6) 3 Eep. 25. Poph. 87. 

(c) Swift v. Roberts, 3 Burr. 1488. 1 Black. R. 476. 

1 In the United States, the general rule is, that all estates, vested in two or more 
persons, are to be deemed tenancies in common, unless a different tenure is apparent 
in the instrument ; and in many of the States, the right of survivorship is expressly 
abolished. In others, it has never been recognized. See tit. 18, ch. 1, § 2, note. 
Joint tenancies, therefore, are generally devisable. 



40 Title XXXVIII. Devise. Ch. III. s. 30—31. 

or a reversion immediately expectant thereon, in another person, 
and such tenant for life levies a fine, it devests the remainder or 
reversion, and turns it to a right, leaving only in the remainder- 
man or reversioner a mere right of entry which is not devisable. 
31. Thus in the case of Goodright -y. Forrester, (a) Lord Ellen- 
borough said, the second question was, whether a right of entry 
was devisable ; and the Court was of opinion that it was not 
devisable, for such right was certainly not assignable by the 
common law, nor did it fall within the words of the statute 32 
Hen. VIII. c. 1, which were, " having manors, lands, tenements, 
or hereditaments ; " nor of the statute 34 & 35 Hen. VIII. c. 5, 
s."4, which were, "having a sole estate or interest in fee simple 
of and in any manors, &ct in possession, reversion, or remainder." • 
In Corbet's case, 1 Rep. 85 b, " For the construction of 
31 * wills * this rule was takeri by the Justices in their argu- 
ments, that such an estate, which cannot by the rules of 
the common law be conveyed, by act executed in his life, by ad- 
vice of counsel learned in the law, such estate cannot be devised 
by the will of a man who is intended by law to be inops consilii." 
From whence it might be inferred, that out of that interest, in 
which by act executed in a man's life, it was not possible to 
create any estate, no estate could be created by his will. And 
in Butler and Baker's case, 3 Rep. 32 a, it is said : " Without 
question, that which a man cannot dispose of by any act in his 
life, shall not be taken for any of his manors, &c. whereof he 
may devise two parts, by authority given him by the statute." 
And in Lord Mountjoy's case, Godb. 17, it was laid down, " that 
the Statute of Wills, 32 Hen. VIII. that it shall be lawful, &c. to 
devise two parts, &c, respects only such things as are devisable ; 
but a right of entry was not devisable, and therefore, according 
to the terms of the statute, and the authority of that case, was 
not devisable. For these reasons, the Court was of opinion that 
there must be a judgment for the defendant. And whatever 
mischief or hardship might attend the decision of this case,! or 
might be expected to arise from the application of the same rule 

(a) (8 East, 552, 567.) 



1 In the United States, rights of entry are almost if not quite universally devisable. 
See infra, 4 37, note; Supra, § 8, note. 



Title XXXVIII. Devise. Ch. III. s. 31—33. 41 

to other cases, it was an inconvenience which could only be rem- 
edied by positive law ; and the propriety of applying such a 
remedy, whereby the same rights of entry and action which be- 
long to the heir, might be extended to the devisee, was a question 
particularly fit for the consideration of the legislature." (a) f 

32. "When the feudal doctrine of non-alienation began to sub- 
side, and some persons were allowed to dispose of their lands by 
will, a devise was considered to be in the nature of an appoint- 
ment to uses. The courts of law, therefore, held that a devise 
affecting lands could operate on those only of which the testator 
was possessed at the time of executing his will; and not on any 
lands acquired afterwards, (b) 1 

33. The statutes of Wills adopt the same principle, the words 

(a) 8 Yin. 61, pi. 21. (A) Cowp. B. 305. 



[t_ A writ of error was brought in the Exchequer Chamber, but judgm«nt was given 
on another point. 1 Taunton's Rep. 578.] 

1 Though, as to personal estate, the law of England adopted the rule of the Roman 
law, by which a testament speaks from the time of the testator's death ; yet a devise 
of lands is considered in a different light from a Eoman will, which was the institution 
of an heir. A devise is an appointment of particular lands to a, particular devisee, and 
is considered in the nature of a conveyance by way of appointment ; and it is upon this 
principle, that no man can devise lands, which he had not at the date of such convey- 
ance. It does not turn upon the construction of the statute of 27 H. 8, which says 
that, " any person having lands,'' may devise them ; for the same rule existed before the 
passing of the statute, in regard to lands then devisable by custom. Harwood a, 
Goodright, Cowp. 90, per Ld. Mansfield. And see ace. Brydges v. Duchess of 
Chandos, 4 Ves. 427, per Ld. Loughborough ; McKinnon v. Thompson, 7 Johns. Ch. 
307 ; Smith v. Edrington, 8 Cranch, 66 ; Brewster v. McCall, 15 Conn. 289, 290. 

This rule, as to the operation of the will in regard to the lands devised, refers to 
the time of the actual execution of the will, which is presumed to be the day of the 
date, unless the contrary appears. But in regard to points of construction, the effect 
would sometimes, perhaps generally, depend on the date, or time of apparent exe- 
cution. See 1 Jarm. on Wills, [277] note. The question, from what period a will 
speaks, is fully discussed by Mr. Jarman in the same work, Vol. I. ch. 2, per tot. 

By stat. 7 W. 4, & 1 Vict. c. 26, § 3, 24, after-acquired lands pass by the will ; and 
the will is made to speak or relate from the moment before the death of the testator, 
unless a contrary intention shall appear by the will. 

After-acquired lands also pass by the will, if such was the intent of the testator, 
by the statutes of most of the United States. But such intent must clearly appear 
on the face of the will, by the statutes of Maine, Massachusetts, New Hampshire, New 
York, Virginia, OMo, Michigan, and Kentucky. It is inferred, from the general terms 
of a devise of alrhis estate, by the statutes of Pennsylvania, and Indiana ; and also 
of Connecticut, unless apparently otherwise intended. In Vermont, the intent must 
appear in the will, or be found " by a proper construction." In Rhode Island, the 

4>* 



42 Title XXXVIII. Devise. Ch. III. s. 33—34: 

being, " all and every person and persons having- manors, &c:, or 
having a sole estate," &c. ; from which it follows that the devisor 
must have the estate at the time of making his will, for he can- 
not devise what he has not in him, then. And in Butler 
32 * and * Baker's case, the Judges, commenting on the word 
having, in the statutes of Wills, say,— If it be asked guts 

potest legare ; the makers of the act answer, every person having 
manors, &c. ; not every person generally, (a) 

34. A person devised all such sums of money, lands, tene- 

, ments, goods, chattels, and estates whatsoever, wherewith, at the 
time of his decease, he should be possessed or invested, to his 
wife. Nine years after, the testator received a sum of money in 
right of his wife, which he laid out in the purchase of an estate 
in Kent, of the nature of gavelkind, and died without having 
republished his will. The heir at law of the testator entered', 
and his widow brought an ejectment to recover the possession. 
The jury found a special verdict, stating the above facts ; and 

(a) 3 Eep. 30 b. Brewster v. M'Call, 15 Conn. 289, 290.) 



lands pass, if such intent " appears by the express terms of his will." In Illinois and 
Mississippi, the statutes empower the testator to devise all the estate ,which he has "or 
may have at the time of his death ; " which seems imperatively to include after-acquired 
lands, if not excluded1>y the terms of the will. See Maine Rev. St. 1840, ch. 92, § 13; 
.Mass. Rev. St. 1836, ch. 62, § 3 ; Cushing v. Aylwin, 12 Met. 169 ; Pray v. Waterstone, 
Ibid. 262 ; Winchester v. Forster, 3 Cush. 366; New Hamp. Rev. St. 1842, ch. 156, § 2 ; 
[Loveren v. Lamprey, 2 Foster, (N. H.) 434 ;] Verm. Rev. St. 1839, ch. 45, §2; R. 
Isl. Rev. St. 1844, p. 231 ; Conn. Rev, St. 1849, tit. 14, ch. 1, § 4 ; Brewster v. McCall, 
15 Conn. 290 ; 1ST. York Rev. St. Vol. II. p. 119 ; fGreen v. Dikeman, 18 Barb. (N. Y.) 
•535; Ellison y. Miller, 11 lb. 332 ;] Dunlop's Dig. LL. Pa. p. 572 ; Tate's Dig. LL. 
Va. p. 889 ; 1 Wash. 75 ; 8 Cranch, 69, 70 ; Ohio Rev. St. 1841, ch. 129, § 48 ; Mich. 
Rev. St. 1846, ch: 68, § 3 ; LL. Ky. Vol. II. p. 1537, § 1 ; Roberts v. Elliot, 3 Monr. 
396; Robertson v. Barber, 6 Monr. 524 ; [Ross v. Ross; 12 B. Monr. 437;] Ind. Rev. 
St. 1843, ch. 30, § 4; 111. Rev. St. 1839, p. 686, § 1 ; Mis. Rev. St. 1840, ch. 36, § 2. 
See also Allen v. Harrison, 3 Call, 289 ; Walton u. Walton, 7 J. J. Marsh. 58 ; Denis 
v. Warder, 3 B. Monr. 173 ; Smith v. Jones, 4 Ohio R. 115 ; Willis v. Watson, 4 Scam. 
64; 4 Kent, Comm. 511-513. 

In the absence of any statute, lands purchased after the date of a devise will pass by 
a codicil made after their purchase; the codicil containing no expressions limiting the 
effect of the devise to lands comprised in the will. Yaraold v. Wallis, 4 Y. & C. 160. 
And see Bridge v. Yates, 14 Law Journ. N. S. 426. ^ 

[In Maryland, after acquired lands pass, " unless a contrary intention shall appear by 
the will." St. 1849, ch. 229, § 1 ; Kemp v. McPherson, 7 Harr. & Johns. 320 ; Car- 
roll v. Carroll, 16 How. U. S. 275.] 



Title XXXVIII. Devise. Ch. III. s. 34—37. 43 

that by the custom of gavelkind any tenant, being seised of lands 
in fee, might devise the same by will in writing. \a) 

The Court was of opinion, that the lands did not pass ; and 
Lord Holt said, the lands' purchased after the execution of the 
will did not pass by it, because the law of England was plain as 
to this point, by all the precedents ; and the law was the same 
of lands devised by custom, as of lands devised by statute ; and 
whenever a will was pleaded, it was always said that the testa- 
tor was seised in a fee, and being so seised made his will ; which 
plainly showed, that it was absolutely necessary he should be 
seised in fee at the time of making his will. 

Upon a writ of error in the House of Lords, this judgment was 
affirmed, (b) f 

*35. It has been stated, that lands contracted for maybe * 33 
devised ; there must, however, be express articles, or a 
positive agreement, binding within the Statute of Frauds, for the 
purchase of an estate, entered into and completed before the exe- 
cution of the will ; otherwise such estate will not pass by it. (c) 

36. Mr. Langford entered into articles with Governor Pitt, for 
the sale of lands in Cornwall. Long before the execution of the 
articles, Governor Pitt made his will; and the question was, 
whether the lands, comprised in the articles, passed by the will ; 
and it was held that they did not. (d) 

37. The devisor must not only be actually seised, or well en- 
titled to the lands, at the time of making his will, but must also 
continue to be so seised or entitled till the time of his death ; l for, 

(a) Brunker v. Cook, 11 Mod. 121. 1 Salk. 2371 

(6) 3 Bro. Pari. Ca. 19. (c) {Supra, § 8.) 

(<2) Langford v. Pitt, 2 V. Wms. 629. HVes. 550. 



[t Upon the same principle it is conceived, lands allotted under enclosure acts in lieu 
of rights of common appurtenant to the lands devised, will not pass by a prior will ; 
since the testator had not, at the date of his will, seisin of the allotment ; nor can a de- 
vise of the lands (in respect of whicli the allotment was made,) with the appurtenances 
be considered an indication of intention to pass the allotment which the testator had 
not at the date of the will. 2 Cases and Op. 309. 

To obviate this difficulty, it is a general practice to insert a clause in local enclosure 
acts, providing that the allotted and exchanged lands shall pass by wills made prior to 
the allotments, as a substitution for, and in addition to, the lands given by the will; 
but no provision for that purpose is contained in the general enclosure act. 41 Geo. 3, 
u. 109; Prest. Abst. 161.] 

1 The English rule, requiring the testator to be seised of the lands devised, at the time 



44 Title XXXVIII. Devise. Ch. III. s. 37—41. 

in the case of a devise of a legal estate, the will cannot take 
effect unless the devisor dies seised ; so that if a person devises 
his lands, and is afterwards disseised, and dies before entry, the 
devise is void ; but if the devisor reenters, the devise becomes 
again valid, according to the opinion of Lord Holt ; because 
when a man is disseised, and reenters, the disseisin is purged, 
and the disseisee is considered as never having been out of 
possession, (a) 

38. In the case of lands contracted for, or a trust estate, the 
equitable right must continue undisturbed. And where the de- 
vise is of an estate in remainder or reversion, it must not be 
devested or turned to a right, as has been already stated, (b) 

39. There are a few cases, in which it has been held, 

34* that a "devise should operate upon property of which the 

devisor was not possessed at the time of making his will. 

40. Thus, where a person devised his manor of A., and sub- 
sequent to the execution of his will, but before his decease, a 
tenancy escheated; it was admitted that the land comprised in 
the tenancy would pass to the devisee, (c) 

41. A term for years, purchased by a testator after the execution 

(a) 11 Mod. 128. Holt's R. 748. Bro. Ab. tit. Devise, pi. 15. 4 Burr. R. 1961. 8 Ves 
282. (6) Ante, s. 30. (c) 1 Salk. 238. 11 Mad. 129. 



of making his will, and to continue seised until his death, though generally prevalent 
in the United States before the Revolution, has subsequently been very much relaxed ; 
and probably is now recognized in but few States in the Union. In the statutes of 
all of them, except Rhode Island, Georgia, and Alabama, no language has been found 
by the editor, which seemed necessarily to require such seisin. On the contrary, by 
the statutes of Maine, Massachusetts, New Hampshire,* and Vermont, the owner is 
expressly enabled to devise lands, of which _he was at the time disseised ; and 
in the other States, the general language of the statutes of Wills, by which the 
owners are authorized to devise "all their real and personal estate ; " " any estates ; " 
" all their lands, tenements, and hereditaments ; " " all their interest in any lands, tene- 
ments," &c. ; "all his estate ; " " any right or title to real property ; " " every estate or 
interest descendible to heirs; " &c, has been in some instances adjudged, and doubtless 
would generally be held, to render valid a devise of a mere right of entry, or of any 
other interest remaining in the testator. See 4 Kent, Comm. 512, 513 ; 3 Lomax, Dig. 
p. 20 ; Watts v. Cole, 2 Leigh, R 664 ; Humes v. M'Farlane, 4 S. & R. 435 ; Varick v. 
Jackson, 2 Wend. 166, 202; 7 Cowen, 238, S. C; Turpin v. Turpin, 1 Wash. 75; 
Stoever v. Whitman, 6 Binn. 416. But see Brewster v. McCall, 15 Conn. 289, 290; 
Supra, s. 8, note; 1 Jarnian on Wills, by Perkins, p. 84, note (1) ; Austin v. Cam- 
bridgeport, 21 Picki 215. 



Title XXXVIII. Devise. Ch. III. s. 41. 45 

of his will, passes by it ; because it is only a chattel real ; and 
the will in this case operates as a testament, and not as a devise, 
either by the custom, or by the statutes of Wills, (a) 



(o) 1 P. Wms. 575. 3 Atk. 176. 



46 



CHAP. IV. 

DEVISES OF COPYHOLDS. 1 



1 This chapter, treating of a tenure not known in American law, is omitted in this 
edition. 



CflAP. V. 



SOLEMNITIES NECESSARY TO A DEVISE. 



Sect. 1. Statute of Frauds. 

2. What is required by this 

Statute. 

3. Writing. 
7. Signing. 

14. Attestation by Witnesses. 

21. Who ought to see the whole 
Will. 

23. And must attest in the pres- 
ence of the Testator. 

32. But may attest at different 
Times. 

36. Wills and Codicils need not 
be separately attested. 

44. Who may be Witnesses. 

50. Publication. 



Sect. 53. A Person cannot empower 
himself to give Lands by 
Will not duly attested. 

55. Wills charging Lands are 

within the Statute. 

56. But not Codicils giving Lega- 

cies. 
61. Devises of Trust Estates are 

within the Statute. 
63. And also of Mortgages and 

. Equities of Redemption. 
65. But not Terms for Years. 
67. Except Terms attendant on 

the Inheritance. 

69. Wills made abroad within the 

Statute. 

70. A Devise of Lands may be 

proved in Chancery. 



Section 1. As the Statute of Wills did not require any pre- 
cise form or ceremony, in a devise of lands, but only that it 
should be in writing ; and as lands, devisable by custom, would 
pass by a will made by parol only, an infinite number of frauds 
were thereby committed. 1 To remedy these, it was enacted by 



1 In all the United States, the formal execution of Wills is regulated by statute ; 
but the requisites, though uniform in their principal features, are not alike in every 
particular. It is universally necessary that a will of lands should be in writing ; and 
the attestation of witnesses, where the will is not wholly in the testator's handwriting, 
is everywhere required ; except in Pennsylvania ; in which State, though the execu- 
tion of the will must he proved by two witnesses, it is not necessary that it be attested 
by their signatures. 

It is generally indifferent, whether the will be signed by the party himself, or by 
another person in his presence and by his express direction, irrespective of the cause 



48 Title XXXVIII. Devise. Ch. V. s. 1. 

the statute 29 Oha. II. c. 3, s. 5, usually called the Statute of 
Frauds, " That all devises and bequests of any lands or tene- 



of such delegation of authority. But it is required by the statute of Pennsylvania, 
that the will be in all eases signed by the testator himself, unless " he shall be pre- 
vented by the extremity of his last , sickness ; " in which case the necessity for signing 
by the hand of another must be proved by two witnesses, and the act, be shown to 
have been done by his express direction. 8 Watts & Serg. 25 ; 5 Barr, 21, 441 ; 
Strieker v. Groves, 5 Whart. 386. In Arkansas, if the will is signed by the hand of 
ano'tlier, in the testator's name and at his request, the person so doing must be one of 
the attesting witnesses, and must state that fact in the attestation. 

There is, however, a diversity in the requisite number of attesting witnesses ; fhree 
being required by the laws of Maine, Massachusetts, New Hampshire, Vermont, Rhode 
Island, Connecticut, New Jersey, Maryland, South Carolina, Georgia^ Florida, Mississippi, 
and Alabama ; while two are Sufficient in New York, Delaware, Virginia, North Caro- 
lina, Ohio, Michigan, Kentucky, Tennessee, Indiana, Illinois, Missouri, Wisconsin, and Ar- 
kansas. But where the will is a holograph, that is, as expressed in some of the statutes, 
written wholly by the testator, subscribing witnesses are in several States entirely dis- 
pensed with. Such is the law in Virginia, North Carolina, Kentucky, Tennessee, Missis- 
sippi, and Arkansas.- But in such case, in the last mentioned State, the handwriting 
of the testator must be proved by three witnesses. In North Carolina, and Tennessee 
also, the same proof is requisite ; and it is further required in these two States, that 
the will be found among the valuable papers of the testator, or in the hands of some 
third person, with whom he lodged it for safe keeping. [See Outlaw v. Hurdle, 1 
Jones Law, (N. C.) 150 ; Wooster v. Wooster, 4 Eich. S. C. 409.] 

In regard to the witnesses signing in the testator's presence, there is also a diversity ; 
this condition, though required in most of the States, not being found in the laws of 
Arkansas, New York, or New Jersey. In Vermont alone, the witnesses must also sign in 
the presence of each other. 

A seal is not now required to a valid will, in any State, though formerly it was requi- 
site in some States. 

The place of the signatures of the testator and witnesses is designated in the statutes 
of Pennsylvania and Ohio, where the will is required to be" signed at the end thereof 
by the party making the same ; " and New York and Arkansas, where the signa- 
tures, both of .the testator and the toitnesses, must be at the end of the will. See infra, 
§ 9>note. 

See Maine Rev. St. 1840, ch. 92, § 2,; Mass. Rev. St. 1836, ch. 62, § 6 ; N. Hamp. 
Rev. St. 1842, ch. 156, § 6; Vermont Rev. St. 1839, ch. 45, § 6 ; [Adams v. Field, 
21 Vt. (6 Washb.) 256] ; R. Isl. Rev. St. 1844, p. 231 ; [Christopher Fry's Will, 2 R. I. 
88;] Conn. Rev. St. 1849, tit. 14, ch. 1, § 2; N. York Rev. St. Vol. II. p. 124, 3ded.; 
N. Jersey Rev. St. 1846, tit. 22, ch. 3, § 2 ; Dunlop's Dig. LL. Pa. p. 571, 572 ; Del. 
Rev. St. 1829, p. 556 ; LL. Maryl. Vol. I. ch. 101, sub ch. 1, § 4; Tate's Dig. LL. Va. 
p. 889 ; N. Car. Rev. St. 1836, Vol. I. ch. 122, § I ; LL. S. Car. Vol. V. p. 106 ; 
Hotchkiss's Dig. LL. Pa. p. 455; [Barr u. Graybill, 13 Penn. State R. (1 Harris,) 
396 ;] Thompson's Dig. LL. Plor. p. 192 ; Ohio Rev. St. 1841, ch. 129, § 2 ;- Mich. 
Rev. St. 1846, ch. 68, § 5 ; LL.Ky. Vol. II. p. 1537, Stat. 1797, § 1 ; Tcnn. Rev. St. 1 836, 
p. 706, 707 ; Ind. Rev. St. 1843, ch. 30, $ 28 ; 111. Rev. St. 1839, p. 686, Stat. Jan. 23, 
1829, § 2 ; Misso. Rev. St. 1845, ch. 185,1 4 ; Missi. Rev. St. 1840, ch. 36, § 2 ; Ark. 
Rev. St. 1837, ch. 157, § 4, 5 ; Ala. Toulm. Dig. p. 883, $ 2. 



Title XXXVIII. Devise. Ch. V. s. 1^4. 49 

menta,-)- devisable either by force of the Statute of Wills, or 
by this statute, or by force of the custom of Kent, or the custom 
of any borough, or any other particular custom, shall be in 
writing, and * signed by the party so devising the same, * 47 
or by some other person in his presence, and by his ex- 
press directions ; and shall be attested and subscribed in the 
presence of the said devisor, by three or four credible witnesses ; 
or else they shall be utterly void, and of none effect." l 

2. In consequence of this statute, the following circumstances 
are now absolutely necessary to the validity of a devise. I. That 
it be written. II. That it be signed by the party himself, or by 
some other in his presence, and by his express directions. III. 
That it be attested by three or four witnesses, in the presence of 
the testator. 

3. A devise of lands or tenements must be reduced into writ- 
ing in the lifetime of the devisor ; for it is not sufficient that it 
be put into writing after his death, being first declared by words 
only, for then it is but a nuncupative will. 

4. It is not material upon what matter or stuff, whether paper or 
parchment; or in what language, whether English, Latin, 
French, &c. or in what kind, of handwriting or character, a de- 
vise is written, so that it be fair and legible, and the meaning be 
sufficiently apparent. 2 Neither is it material whether it be writ- 

[t In reference to the application of this act to the British Colonies in America, 
see stat. 22 Geo. 4, ch. 6, ss. 10, 11 ; and to lands in the East Indies, see Uac. & Wal. 26.] 

1 By the stat. 7 W. 4, & 1 Vict. ch. 26, § 9, 11, 12, two witnesses are now sufficient, in 
England. 

2 Though it is deemed necessary to the validity of a deed that it be written on 
parchment or paper, as has" already been seen, (ante, tit. 32, ch. 1, § 16,) yet it seems 
that the material on which a will is written is of no importance ; the technical reason, 
in the case of a deed, being recognized only in proceedirigs at common law ; whereas 
the probate of wills belongs to a different jurisdiction, governed by the rules of Courts 
of Equity. Nor is- the kind of writing material, whether it be ink, or pencil ; In re 
Dyer, 1 Hagg. 219 ; provided the Court be satisfied, in case it be in pencil, that the 
testator intended so to execute his will, Rymes v. Clarkson, 1 Phillim. 22 ; and see 
Green v. Skipworth, 1 Phillim. 53 : Dickenson v. Dickenson, 2 Phillim. 173. For the 
use of a pencil, in writing, is not in itself conclusive of the intention of the party. It 
may be with a final intent, or it may be only deliberative. Prom the nature of the act, 
unexplained, the use of a. pencil will be deemed prima facie, deliberative; but the use of 
ink will be deemed final. But it will still be open to be determined, upon the collateral 
evidence, which of these was the actual intention of the party. Francis v. Grover, 5 
Hare, 49 ; and see 2 Greenl. Evid. § 691, and cases there cited. The rule is the same. 
in regard to subsequent alterations made in a will. Francis v. Grover, supra. [It is 

VOL. III. 5 



50 Title XXXVIII. Devise. Ch. V. s. 4—9. 

ten at large, or by notes usual or unusual ; or whether sums of 
money given be expressed at full length, or in figures, providedit 
be free from all doubt and ambiguity. 

5. Thus, where a will, in which legacies charged on lands 
were written in figures, was scarcely legible, it was referred to a 
master to examine and see what those legacies were ; and he 
was directed to call to his assistance persons skilled in the art of 
writing, (a) 

6. A will may be written at several times, and on several sheets 
of paper, unconnected with each other ; although the proper mode, 
where a will is written on several sheets of paper, is, to join them 
together by means of a piece of tape sealed, (b) 

7. The next circumstance, necessary to the validity of a devise 
of lands, is, that it be signed by the devisor, 1 or by some other 
person, in his presence, and by his direction. The latter part 
of this clause was inserted for the benefit of those persons who, 
from sickness or some other misfortune, should be incapable of 
writing their name, or making their marks. And where a will is 
written on several sheets of paper, it is the usual practice for 

the testator to sign each page. 
48 * * 8. The framers of the Statute of Frauds chose signing, 

rather than sealing and delivery, the solemnities required 
in deeds; because seals, though formerly a great mark of dis- 
tinction in families, were much disused when this statute was 
made, and people sealed with any seal ; so that signing, as used 
in the Roman law, was preferred, (c) 

9. If the testator's name be written by himself, in any part of 
a will, either at the beginning or at the end, it will be considered 
as a sufficient signing within the statute. 2 

(a) Masters v. Masters, 1 P. Wms. 425. (5) 1 Show. R. 6'6. (c) Gilb. E. 261. 



not essential that the parts of the will should be physically connected, if they are con- 
nected by their internal sense. Wyckoff 's Appeal, 15 Penn. State, (3 Harris,) 281 ; 
Martin v. Hamlin, 4 Strobh. 188.] 

' The " signature," consists both of the act of -writing his name, and of the intention 
of thereby finally authenticating the instrument. It is not necessary that the entire 
name be written ; his mark is now held sufficient ; even though he be able to write. 
Baker v. Dening, 8 Ad. & El. 94 ; Taylor v. Draing, 3 N. & P. 228 ; In re Brycc, 
3 Curt. 325 ; In re Field, Ibid. 752 ; Wilson u. Beddard, 12 Sim. 28 ; Harrison v. El- 
vin, 3 Ad. & El. 117, N. S. ; Jackson v. Van Dusen, 5 Johns. 144 ; Infra, § 19, note • 
[Shinkle v. Crock, 17 Penn. State R. (5 Harris,) 159 ; Davies v. Morris, lb. 205.] 

2 This has been altered, in England, by the stat. 7 W. 4, & 1 "Vict. c. 26, § 9, n 12 



Title XXXVIII. Devise. CL V. *. 10. 51 

10. A person wrote his will with his own hand, beginning 
thus, " I, John Stanley, make this my last will and testament ; " 
and put his seal, but did not subscribe his name to it. This was 
adjudged to be a good will ; for being written by himself, and 
his name in the will, it was a sufficient signing within the stat-' 
ute ; which did not appoint where the will should be signed, at 
the top, bottom, or margin ; and therefore a signing in any part 
was sufficient. And three of the Judges were of opinion, that 
the putting his seal had, of itself, been a sufficient signing 



which requires that the signature be at the foot or end of the instrument. Sucli 
, is also the law in Ohio, Pennsylvania, New York, and Arkansas. Supra, § 1, note. 
But in the other States, in the absence of any statute provision, the English rule pre- 
vails, as it,stood before the passage of the act above mentioned. Sarah Milcs's Will 
4 Dana, 1 ; 4 Kent, Comtn. 515, 516 ; [Tonnele v. Hall, 4 Comst. 140.] It is a question 
• of fact, whether the signature, in whatever part of the will it is placed, was made with 
the Jinal intention of authenticating the will. Supra, § 7, note. And this at least in the 
case of an holograph, ought to appear from the instrument itself. Waller v. Waller, 
1 Gratt. 454. ' 

Upon the English statute, requiring that the signature of a will be made "at the foot 
or end thereof," it has been held, that these words are to be construed strictly ; and 
that the signature, as distinguished from the attestation-clause, must be made at the 
foot or end (strictly read) of the will; and therefore an allegation, pleading circum- 
stances fully accounting for the signature being at some distance from the termination 
of the previous writing, has been rejected. Smee v. Bryer, 13 Jur. 103, 289. And see 
Ayres v. Ayres, 1 Bob. Eccl. R. 466 ; 11 Jur, 417 ; In re Chaplyn, 10 Jur. 210. But 
where a clause, written previously to the execution of the will, ran partly opposite to 
and partly beneath the signatures of the testator and of the witnesses, it was held to be 
a sufficient signing at the.end of the will, to satisfy the demand of the statute. In re 
Powell, 1 Rob. Eccl. R. 421. So, where the will was an holograph, the testatum clause 
being also in the handwriting of the testatrix, in these words: — "In witness whereof I 
have hereunto set my hand and seal, Jane Randolph Gunning, this twenty-fifth day of 
September, eighteen hundred and forty-five ; " with no subsequent signature ; this was 
held to have been signed in conformity with the statute. ' In re Gunning, 1 Rob. Eecl. 
R. 459. In the following cases, the will was rejected for want of strict compliance 
with the statute, as to the place of signature. In re Jones, 1 Rob. Ec. R. 424 ; In re 
Howell, Id. 671 ; In re Ensell, Id. 702; In re Scarlett, 10 Jur. 211. The following 
are cases in which, after contest, the signature was held sufficient. In re Corder, 1 
Rob. Ec. R. 669 ; 12 Jur. 966 ; In re Harris, 1 Rob. Ec. R. 703 ; 13 Jur. 285 ; In re 
Brown, 1 Rob. Ec. R. 710; In re Beadle, 1 Rob. Ec. R. 749; 13 Jur. 478; In re 
Bauly, 1 Rob. Ec. R. 751 ; 14 Jur. 514; In re Dawney, 14 Jur. 318. Where the 
testator was blind, his signature after a blank space of four inches was held sufficient. 
In re Hellings, 1 Rob. Ec. R. 753 ; 13 Jur. 568 ; [Jermyn v. Hervey, 1 Eng. Law and 
Eq. R. 633 ; In re Anderson, lb. 634.] See also In re Woddington, 2 Curt. 324; In re 
Carver, 3 Curt. 29; In re Davis, Ibid. 748 ; In, re Bullock, Ibid. 750 ; In re Martin, 
Ibid. 754 ; In re Gore, Ibid. 748. 



52 Title XXXVIII. Devise. Ch. V. s. 10—13. 

within the Statute of Frauds ; for signwm was no more than a 
mark that it was his will, (a) 

11. The position, laid down in the preceding case, that sealing 
a will is a sufficient signing within the Statute of Frauds, is very- 
doubtful ; for although Sir J. Strange reports, that in 13 Geo. I., 
on an issue directed out of Chancery, of devisavit vel non; the 
Chief Justice ruled, that sealing a will was, a signing within the 
Statute of Frauds, yet in a subsequent case, 25 Geo. II., it was 
said by Lord Ch. B. Parker, Baron Clive, and Baron Smythe, 
(absente Legge,) that the opinion, advanced in 3 Lev. 1, that 
sealing was a sufficient signing, was a strange doctrine ; for if it 
were so, it would be very easy for a person to forge any man's 
will, by only forging the names of any three obscure persons,. as 
there would be no occasion to forge the testator's name : and the 
Barons said, if the same should come in question agafn, they 
should not hold that sealing a will only, was a sufficient signing 
within the statute.- (b) } 

,12. The want of signing all the sheets of a will cannot be 
supplied ; so that if the devisor should intend to sign the remain- 
ing sheets, but becomes incapable of doing it by sickness, such 
an execution will not be deemed sufficient. 

13. A will was prepared and written on five sheets of 
49 * paper, * and a seal affixed to the last, and also the form 
and attestation written on it. The will was then read over 
-to the testator in the presence of three witnesses, who afterwards 
.subscribed, and the testator set his mark to the first two sheets 
in their presence, and attempted to set it to the third ; but being 
unable, from the weakness of his hand, he said, " I qannot do it, 
but it is my will." After this the three witnesses^went away, 
being desired to come again. The testator died, without setting 
his mark, to the last three sheets, (c) 

(a) Lemayne «. Stanley, 3 Ley. 1. (Seldon v. Coalter, 2 Virg. Cas. 553. Lee v. Libb, 1 
Show. 09.) 

(6) Warneford v. Warneford, 2 Stra. 764. Smith v. Evans, 1 Wils. E. 313. Grayson v. 
Atkinson, 2 Vez. 459. 1 Ves. 13. 17 Ves. 459. 

(c) Eight v. Price, 1 Doug. 241. See also 1 Mer. 503. 

1 In the United States, a seal is nowhere necessary to the validity of a will. Supra, 
§ 1, note. But if a seal is affixed, as a part~of the solemnity, though superfluous, and 
is afterwards torn off by the testator, anitno revocandi, this may amount to a revocation. 
Avery v. Pixley, 4 Mass. 460, 462, 



Title XXXVIII. Devise. Ch. V. *. 13—14. 53 

Lord Mansfield said, the will was not duly executed ; for when 
the testator signed the first two sheets, he had an intention of 
signing the other sheets, but was not able ; he therefore did not 
mean the signature of the first two sheets as a signature of the 
whole will : there never was a signing of the whole. The Court, 
to be sure, would lean in support of a fair will, and not defeat it 
for a slip in form, where the meaning of the ^statute had been 
complied with ; but here there was no room for presumption. 
Adjudged that the will was not duly executed. 1 

14. The third circumstance, required by the Statute of Frauds 
to the validity of a devise is, that it should be attested and sub- 
scribed, in the presence of the testator, by three or four witnesses? 

1 Where a will, which was written on three sides of one sheet and duly attested, 
concluded "by stating that "the testator had signed his name to the first two sides thereof, 
and his hand and seal to the last ; " but in fact he had only put his name and seal to 
the last page, omitting to sign his name on the first two ; it was held, that the will was 
well executed j for whatever might have been his original intention, it appeared to 
have been abandoned at the tinie of the final execution of the instrument. See Winsor 
u. Pratt, 5 Moore, 484 ; 2 Brod. & Bing. 650, where the case in the text is commented 
on. • 

2 In the several American States, the number of witnesses required is not every- 
where the same ; some requiring three and some only two ; while in Pennsylvania none 
are required to subscribe their names to the will, though their presence is necessary. 
See supra, § 1, note. But wherever attesting witnesses are required, the statute means 
something more than the bare subscribing their names ; it implies a knowledge of the 
existence of those facts which constitute the legal execution of the instrument as a 
will. Swift v. Wiley, 1 B. Monr. 117. It is sufficient, as a. valid attestation, if the 
witness, when requested to attest the will, adopts his signature already on the instru- 
ment, without subscribing it again. Pollock v. Glassell, 2 Gratt. 439. And an attes- 
tation by signing only the initials of his name, has been held sufficient. Jackson v. 
VanDeusen, 5 Johns. 144; Adams v. Chaplin, 1 Hill, Ch. K. 266, S. Car. If the 
will on its face, appears to have been duly executed, the presumption is in its 
favor, that it was so executed. And the presumption is the same, if the witnesses 
have no recollection of the transaction, and remember nothing to the contrary ; 
for positive affirmative evidence of the facts, by the subscribing witnesses, is not 
absolutely essential. Burgoyne v. Showier, 8 Jur. 814; In re Leach, 12 Jur. 381; 
Blake v. Knight, 3 Curt. 547 ; Doe v. Davis, 11 Jur. 182; Clarke v. Dunnavant, 
10 Leigh, 13. And though the attesting witness is expected to know something more 
of the transaction, than the mere act of the testator's signature, yet where a will, 
made in the execution of a power, was required to be signed and published by the 
donee, in the presence of and attested by two or more credible witnesses ; and it was 
attested thus, — " We the undersigned attest to have seen the above testator sign the 
above will ; " it was held to be, in effect, attestation to the publication, as well as to 
the signature. Bartholomew v. Harris, 15 Sim. 78. See also Warren v. Postlethwaite, 
9 Jur. 721. Sed Vid. Allen v. Eradshaw, 4 Curt. 110. Semb. Contra. 

No person ought to attest a will, unless he is already satisfied that the testator is of- 

5* 



54 Title XXXVIII. Devise. Ch. V.\ s. 14—17. 

In this instance, the statute adopts the mode prescribed by the 
civil law, in testamentis solemnibus, not as laid down in Justin- 
ian's Institutes, but as reformed by the code, in "the Novels ; and 
the evil, meant to be remedied by the makers of the Statute of 
Frauds was, the secret and private manner in which wills were 
formerly executed, (a) 

15. Where the testator owns his handwriting before the wit- 
nesses, it is sufficient,; though they do not see him sign his name. 

16. Thus, in proving a devise of lands in the Court of Chan- 
cery, the evidence Was full that the three witnesses did" subscribe 
their names in the presence of the testatrix ; one of them how- 
ever, said he did not see the testatrix sign, but that she owned, 
at the time when the witnesses subscribed, that the name signed 
to the will was her own handwriting; which Sir J. Jekyll held 
without all doubt, to be sufficient, (b) 

17. On a bill to establish a will against an heir at law, he by 
his answer made a doubt, whether, as all the witnesses 

50 * did not * see the testator sign, this was a good attestation 
within the statute. (c) % » 

(a) Gilb. E. 261. (6) Storehouse r. Evelyn, 3 P. Wms. 254. 
(c) Grayson v. Atkinson, 2 Vez. 454. 



sound.and disposing mind, and has full understanding of the disposition he is making 
of his estate. Seribner v. Crane, 2 Paige, 147. 

Whether, if the witnesses subscribe their names before the testator has signed the will,' 

■ it is a sufficient attestation of the will, quaere. In England, under the statute of 1 
Vict. c. 25, § 9, it is held that it is not. Cooper v. Brockett, 3 Curt. 648 ; In re Byrd, 
Ibid. 117 ; In re Olding, 2 Curt. 865. But in this country the priority has been held 

, immaterial. Swift v. Wiley, supra; and see Pollock v. Glassell, supra. 

In New York, New Jersey, and Arkansas, the statute requires, not only that the 
testator should sign the instrument, or acknowledge the signature, in presence of the 
witnesses, but that he should also declare it to be his will. N. York Rev. St. Vol. II. 
\>t 124, § 32, 3d ed.; N. .Jersey Kev. St. 1846, p. 636, § 2 ; Ark. Rev. St. 1837, ch. 157, § 4. 
A disti.nct publication of the will, as a will, is thus made indispensable to its validity. 
No particular form of expression is necessary, but the declaration that it is his will 
must be unequivocal ; it is not sufficient to say that it is his " will or agreement." The 
■witnesses, moreover, must know that it is his will, and that he understood it to-be so, 
and intended to execute it as such. See Brinckerhoff v. Remsen, 8 Paige, 488 ; 26 
Wend. 325, S. C. ; Chaffee v. Baptist M. C. 10 Paige, 85; Heyer v. Berger, 1 
Hoffm, Ch. K. 1 ; Den v. Milron, 7 Halst. 70; Rutherford ». Rutherford, 1 Denio, 
33. [Lewis v. Lewis, 1 Kernan, N. Y. 220 ; Newhouse v. Godwin, 17 Barb. 236 ; Tyler 
o. Mapes, 19 lb. 448; Seymour v. Van Wyck, 2 Selden, N. Y. 120 ; Torry v. Bowen, 
15 Barb. 104 ; Van Buren v. Cockhurn, 14 lb. 118 ; Lewis v. Lewis, 13 lb. 17 ; Brown 
ulDe Selding, 4 Sandf. Sup. Ct. 10 ; Rogers v. Diamond, 8 Eng. (13 Ark.) 474,] 



Title XXXVIII. Devise. Ch. V. s. 17—18. 55 

r 

Lord Hardwicke. — " This had been vexata questio a great 
while ; whether to njake a will effectual, according to the statute, 
the signing of the testator thereto should be in the presence of 
all, or indeed of any of the witnesses ; or whether the testator's 
acknowledging the handwriting to that will to be his, is not suf- 
ficient. It is insisted that the word " attested" superadded to 
" subscribe," imports they shall be witnesses to the very act and 
factum of signing : and that the testator's acknowledging that 
act to have been done by him, and that it is his handwriting, is 
not sufficient to enable them to attest ; that is, it must be an, 
attestation of the thing itself, not of the acknowledgment. To 
be sure, it must be an attestation of the thing in some sense : 
but the question is, if they attest upon the acknowledgment of 
the testator that it is his handwriting, whether that is not an 
attestation of the act ; and whether it is not to be construed as 
agreeable to the rules of law and evidence, as all other attesta- 
tion and signing might be proved. At the time of making the 
act of Parliament, and ever since, if a bond or deed is executed 
by the person who signs it, afterwards the witnesses are called in, 
and before those witnesses he acknowledges it to be his hand ; 
that is always considered to be a signing by the person execut- 
ing, and is an attestation of it by them. The case of Lemayne 
v. Stanley (a) is an express authority, and must have been by an 
acknowledgment of the testator's hand : no answer can be given 
to it, but a presumption that the testator might write the will in 
the presence of the three witnesses ; but this is not a natural pre- 
sumption ; for if the fact were so, it would have been found by 
the jury, as it would have put it out of all doubt. Therefore, on 
the penning of the act, and the authorities, my opinion is, that 
this will is well executed ; but being a question of law, if the 
heir insists on having it tried, I will direct a trial." A trial was 
accordingly directed. 

18. The doctrine here laid down was soon after fully con- 
firmed by a determination of Lord Hardwicke, assisted by Sir 
John Strange, Lord Ch. J. Willes, and Lord Ch. B. Parker, in 
which it was unanimously resolved, that the declaration of a 
testator, before three witnesses, that a paper was his 
will, was equivalent *to signing it before them, and con- *51 

(a) Ante. s. 10. 



56 Title XXXVIII. Devise. Ch. V. s. 18—19. 

stituted a good will within the 5th section of the Statute of 
Frauds, (a) J 1 

19. It has been determined in a late case, that an attestation 

(a) Ellis v. Smith, 1 Ves. 11. Westbeech v. Kennedy, 1 V. & B. 362. (Wright v. Wright, 
5 Mo. & P. 316. 7 Bing. 457.) 



[t See also White v. Trustees of the British Museum. 6 Bing. 310; Wright v. Wright, 
7 Ibid. 457 ; Johnson v. Johnson, 1 Crom. & Mees. 140.] 

1 The question, what amounts to an acknowledgment of the signature, has been much 
discussed, and the decisions are various ; but the inclination of the Courts is, to give a 
liberal construction to the statute, in regard to the attesting witnesses' knowledge of 
the testator's signature ; and to hold it sufficient, if it appear that the testator did, in 
some satisfactory manner, acknowledge the paper to be his, as an instrument already 
executed by him. White v. British Museum, 6 Bing. 310; Wright v. Wright, 7 Bing. 
457 ; Johnson v. Johnson, 4 C. & M. 140 ; Hall v. Hall, 17 Pick. 373 ; Dewey v. Uewey, 
1 Met. 349 ; Hogan v. Grosvenor, 10 Met. 54; Loy v. Kennedy, 1 Watts & Serg. 396. 
See also 2 Greenl. Evid, § 676 ; 1 Jarm. on Wilis, [72] (2d Am. ed.) and the cases cited 
in Perkins's note. 

TJie English statute of 1 Vict. c. 26, § 9, has somewhat changed the law on this sub- 
ject, by a provision not contained in the Statute of Frauds, namely, that the signature 
of the testator "be made or acknowledged by him in the presence of two or more wit- 
nesses, present at the same time." Under this statute it is held requisite that the testa- 
tor acknowledged the signature as his own ; and that, though no set form of words is 
necessary for this purpose, yet it must appear that the will was actually signed, at the, 
time, and that the witnesses saw the signature. Therefore, where the witnesses were 
merely requested thus, — " sign your names to this paper ; " the will being produced and 
attested by them accordingly, but without more saying ; it was held insufficient. In 
re Rawlins, 2 Curt. 326. And more recently, in a case well considered, the mere cir- 
cumstance, that the deceased called two witnesses "to sign a paper for him," which 
they did in his presence, but without being informed as to the nature of the instru- 
ment, or being able to see whether any writing was upon it, the paper being doubled 
down, was held not to amount to an acknowledgment of the signature, so as to satisfy 
the statute. Hot v. Genge, 3 Curt. 160, 4 Moore, 265. And see In re Warden, 2 Curt. 
334; Blake v. Knight, 3 Curt. 547 ; In re Ashmore, Ibid. 607 ; Hudson v. Parker, 8 Jur. 
376. 

In New York, and in Arkansas, the Statute of Wills requires, that the subscription of 
the will by the testator shall be made "in the presence of each of the attesting witnesses, 
or shall be acknowledged by him to have been so made, to each of the attesting wit- 
nesses." See N. Y. Rev. St. Vol. II. p. 124, § 2, (3d ed.) ; Ark. Rev. St. 1837, c. 157, ' 
§ 4 ; [Ante, § 14, n. 1.] The principle of the recent decisions in England would there- 
fore seem applicable in those States. The language of the statute of Ohio, (Rev. St. 
1841, c. 129, § 2,) is substantially the same, requiring the presence of two or more com- 
petent witnesses, " who saw the testator subscribe, or heard him acknowledge the same." 
The statute of Illinois, (Rev. St. 1839, p. 686, § 2,) requires the subscribing witnesses to 
testify, at the probate of the will, " that they were present and saw the testator— sign 
said will,— in their presence ; or acknowledge the same to be his or her act and deed." 
No other States are known to have legislated, in express terms, respecting the acknowl- 
edgment of the signature. 



Title XXXVIII. Devise. Ch. V. s. 19—22. 57 

of a devise, by the witnesses setting their marks to the will, was 
good within the Statute of Frauds, (a) 1 

20. It has also been determined, that it is not necessary to the 
validity of the execution .of a will of lands by a blind man, that 
it should be read over to him in the presence of the attesting 
witnesses, (b) 2 

21. The witnesses ought to see the whole will; for if they only 
see the last sheet, on which they subscribe their names, it is 
doubtful whether that be sufficient. The presumption however 
is, that all the sheets, on which a will is written, are in the 
room where the witnesses attest, unless the contrary be proved. 

22. Sir T. Chitty made his will, consisting of two sheets of 
paper, all in his own handwriting, and signed his name at the 
bottom of each page. The sentences and words were so con- 
nected, from the bottom of each page to the top of the next, and 
particularly from the fourth side of the first sheet to the first side 
of the second sheet, that they were imperfect and nonsensical 
if read apart, but clear and intelligible when read together. He 
also made a codicil in like manner on a single sheet. The tes- 
tator then called in Francis Harding, showed him both sheets of 
the will, and his signature to every page, told him that was his 
will, and also showed him the codicil, and desired him to attest 
both, Which he did on the last sheet of the will, and on the 
codicil, in the presence of the testator, and then left the room. 

(a) Harrison v. Harrison, 8 Ves. 185. Ibid. 504.) 
(6) Longchamp v. Fish, 2 Bos. & Pull. N. E. 415. 



1 A mark is now universally deemed sufficient, as well in the case of a witness, as in 
that of the testator, to answer the requirement of signing, or subscribing his name, in 
the statute. See supra, § 7, note ; 2 Greenl. Evid. § 677, (2d ed.) and cases there cited ; 
1 Greenl. Evid. § 272, ("4th ed.); Chaffee v. Baptist M. C. 10 Paige, 85; Adams v. 
Chaplin, 1 Hill, S. Car. Rep. 266; Dew v. Milton, 7 Halst. 70; Collins v. Nichols, 
1 Har. & J. 399 ; Madison v. Zabriskie, 11 Louis. K. 251 ; 9 Louis. R. 512 ; Civ. Code, 
Louis, art. 1575; In re Ashmore, 3 Curt. 756. 

2 Though the testator were blind, yet he must be sensible of the presence of the 
witnesses, through his remaining senses, and that they subscribed the will in his 
presence. Reynolds v. Reynolds, 1 Spears, 256, 257 ; Boyd u. Cook, 3 Leigh, 32 ; 
Barton v. Robins, 3 Phillim. 455, note ; In re Percy, 1 Rob. Eccl. R. 278 ; [Ray v- 
Hill, 3 Strobh. 297.] Where the will of a blind person was drawn in conformity with 
the instructions given by the testatrix to her solicitor, it was held good, though not 
proved to have been read over to her previous to the execution. Edwards v. Pincham, 
4 Moore, 198 ; 2 Greenl. Evid. § 678, note. 



58 Title XXXVIII. Devise. Ch. V. s. 22: 

John Vaughan and John Leyland came in immediately after- 
wards ; the testator showed them the codicil, and the last sheet 
of the will, and sealed them in their presence ; took each of 
them up, and severally delivered therp. as his act and deed. 
These witnesses then attested the same in the testator's presence, 
but never saw the first sheet of the will, nor was it produced to 
them, nor was the same or any other paper on the table. After 
the testator's death both sheets of paper were found in his 

bureau, not pinned together, but wrapped up together 
52 * with the "codicil in one piece of paper. The question 

was, whether the will was duly attested, according to the 
Statute of Frauds, (a) 

The case was several times argued before all the Judges in the 
Exchequer Chamber ; and Lord Mansfield acquainted the bar, 
that there had been a conference among all the Judges, except 
Mr. Baron Adams, who was out of town, upon this case, which 
was an amicable suit, to try the real merits of the question. It 
occurred to the Judges, that the way in which the parties had put 
the case did not go to the whole merits, because if the first sheet 
was. in the room at the time when the latter sheet was executed 
and attested, there would remain no doubt of its being a good 
will, and a good attestation of the whole will ; but if the first 
sheet was not then in the room, a doubt might arise whether it 
was, or was not, a good attestation, as to the real estate. How- 
ever,*no opinion was given or formed by the Judges upon such 
doubt which might so arise, if it should appear that in fact the 
first sheet was not then in the room. A will, properly attested, 
might, by reference to another instrument, establish particular 
clauses, so ascertained by a clear reference, as strongly as if the 
clauses so referred to had been repeated, in the will verbatim ; 
and there were references in this will from one part to another. 
Every presumption ought to be made by a jury in favor of such 
a will, when there was no doubt of the testator's intention. It 
was not necessary that the witnesses should attest in the presence 
of each other, or that the testator should declare the instrument 
he executed to be his will ; or that the witnesses should attest 
every page, folio, or sheet ; or that they should know the con- 
tents ; or that each folio, page, or sheet should be particularly 

(o) Bond v. Seawell, 3 Burr. 1773. 1 Black. R. 407. (Gass v. Gass, 3 Humph. 27S.) 



Title XXXVIH. Devise. Ch. V. s. 22—24. 59 

shown to them. This had been settled : but the fact whether 
the first sheet of the will was or was not in the room, at the time 
of the executing and attesting the latter, might be material to be 
known ; if it was, the jury ought to find for the will generally, 
and they ought to find all things favorable to the will. If it was 
doubtful whether the first sheet was then in the room or not, 
they all thought the circumstances sufficient to presume that it 
was in the room, and that the jury ought to be so directed ; but 
upon a special verdict nothing could be presumed ; therefore they 
were all of opinion that it ought to be tried over again ; and if 
the jury should be of opinion that it was then in the room, they 
ought to find for the will generally ; and they ought to 
* presume, from the circumstances proved, that the will *53 
was in the room. 

23. The statute expressly requires, that the witnesses should 
attest and subscribe the will in the presence of the testator, lest 
another will should be substituted instead of the real one. (a) 1 

24. Thus, where a person subscribed his will in the presence 
of three witnesses, who, for the ease of the testator, went down 
into another room, and subscribed it there, it was held to be 
void, (b) 

(a) Lord Eancliffe v. Parkyns, G Dow, 202. 

(6) Broderick v. Broderick, 1 P. Wins. 239. (Dunlap v. Dunlap, 4 Desau. 311.) 



1 The testator must be able, without changing his situation, to see and identify the 
instrument, if he is so disposed, though in fact he does not attempt so to do ; aud he 
must have mental knowledge and consciousness of that fact. If sick in bed, he must 
be able to do this without leaving his bed. Tod v. E. of Winchelsea, 2 C. & P. 488 ; 
1 M. & M. 12 ; Doe v. Manifold, 1 M. & S. 294; Tribe v. Tribe, 1 Rob. Eccl. R. 775 ; 
13 Jur. 793. If he were in a state of insensibility at the moment of attestation, it is 
void. Right v. Price, 1 Doug. 241. Being in the same room with the testator, is prima 
facie evidence that the attestation was in his presence ;'but if the attestation was in an- 
other room, though separated by folding-doors, it is, prima facie, not an attestation in 
his presence ; the presumption., in both cases, being open to the control of other evi- 
dence, it being a mere question of fact. Neil c. Neil, 1 Leigh, R. 6, 10-21, where the 
cases are ably reviewed by Carr, J. See also, In re Colman, 3 Curt. 118 ; Russell v. 
Falls, 3 Har. & McH. 457 ; 1 Greenl. Evid. § 272 ; 2 Greenl. Evid. § 678 ; 4 Kent, Comm. 
515, 516 ; Reynolds v. Reynolds, 1 Spears, 253 ; Howard's Will, 5 Monr. 199 ; Edelin 
v. Hardey, 7 H. & J. 61 ; Clerk o. Ward, 4 Bro. P. C. 71 ; Dewey v. Dewey, 1 Met. 
349. As to what is meant by " changing his situation," see the able arguments of 
counsel in Russell v. Ealls, supra. The presence of the testator is not required by the 
laws of Arkansas, New York, or New Jersey. Supra, § 1, note; [Boldry v. Parris, 2 
Cush. 433 ; Sturdivant v. Birchett, 10 Gratt. (Va.) 67 ; Nock v. Nock, lb. 106 ; Moore 
v. Moore, 8 lb. 307 ; Rosserw.ErankIin,6Ib. 1; Graham v. Graham, 10 Ired. (N. C.) 219.] 



60 Title XXXVIII. Devise. Ch. V. s. 25—28. 

25. But if there be a possibility of the testator's seeing the wit- 
ness attest, it will be sufficient, unless the contrary is proved, (a) 

26. A testator desired the witnesses to go into another room, 
seven yards distant, to attest his will, in which there was a win- 
dow broken, through which the testator might see them ; and it 
was held that this will was well attested, according to the stat- 
ute ; for it was sufficient that the testator might see the witnesses, 
and not necessary that he should actually. see them; for in that 
case, if a man should turn his back, or look another way, it 
would vitiate the will. So if the testator, being sick, should be 
in bed with the curtains closed, (b) 

27. There were four witnesses to a will, one of whom was 
gone beyond sea ; two of them swore that they saw the will exe- 
cuted by the testatrix, and that they subscribed the same in her 
presence ; the third swore that he subscribed the will as a witness 
in the same room, and at the request of the testatrix, (c) 

Lord Cowper doubted as to the proof of the execution of the 
will ; and the matter coming on again before Lord Macclesfield, 
he observed, I. That the proper way of examining a witness to 
prove a will of land was, that the witness should not only prove 
the execution of the will by the testator, and his own subscribing 
it, but likewise that the rest of the witnesses subscribed their 
names in the presence of the testator ; and then one witness 
proves the full execution of the will, since he proves that the 
testator executed it, and also that the three witnesses subscribed 
it in his presence. IL He held, that the bare subscribing of th§ 
will by the witnesses in the same room, did not necessarily imply 
it to be in the testator's presence, for it might be in a corner of 
the room, in a clandestine, fraudulent way ; and then it 
54.* would not be a subscribing by the witnesses irt the * tes- 
tator's "presence, merely because in the same room. But 
it being sworn by the witness, that he subscribed the will at the 
request of the testatrix, and in the same room, this could not be 
fraudulent ; and therefore the will was well executed. 

28. A married woman, having a power to make a writing in 
the nature of a will, ordered a will to be prepared, and went to 
an attorney's office to execute it ; but being asthmatic, and the 

(a) (Tod v. E. of Winchelsea, 2 C. & P. 488. 1 Greenl. Evid. § 272.) 
(6) Shires v. Glascock, 2 Salk. 688. 1 Ld. Eaym. 507. 
(c) Longford v. Eyre, 1 P. Wins. 740. 



Title XXXVIII. Devise. Ch. V. s. 28—30. 61 

office verj# hot, she retired to her carriage, to execute the will, 
the witnesses attending her ; who, after having seen her execute 
it, returned into the office to attest it, and the carriage was put 
back to the window of the office, through . which it was sworn 
by a person who was in the carriage, that the testatrix might 
see what passed. Immediately after the attestation, the wit- 
nesses took the will to her, which she folded up, and put into her 
pocket. It was decreed that the will was well attested, (a) 

29. Although the witnesses to a will must subscribe it in the 
presence of the testator, yet the Statute of Frauds does not require 
that this circumstance should be taken notice of in the attestation ; 
and whether inserted or not; the fact, if denied, must be left to 
the jury ; for neither the insertion nor omission of this circum- 
stance is conclusive. 1 

30. In ejectment by an heir at law, the question for the opinion 
of the Court was, if it should be left .to a jury to determine, 
whether the witnesses to a will, being all dead, set their names 
in the presence of the testator ; and this merely upon circumstan- 
ces, without any positive proof, (b) 

The Court said, this was a matter fit to be left to a jury. The 
_ witnesses, by the Statute of Frauds, ought to set their names as 
witnesses in the presence of the testatrix ; but it was not re- 
quired by the statute that this should be taken notice of in the 
subscription to the will ; and whether inserted or not, it must be 
proved ; if inserted it did not conclude, but it might be proved 
contra, and the verdict might find it contra. Then, if not con- 
clusive when inserted, the omission did not conclude it was not 
so ; and therefore must be proved by the best proof which the 
nature of the thing would admit of. In case the witnesses were 
dead, there could not probably be any express proof, since, at 
the execution of wills, few were present but the devisor and the 

(a) Casson v. Dado, 1 Bro. C. C. 99. 

(5) Hands v. James, Com. E. 531. Willes R. 1, S. P. 



' In Missouri, it has been "held, that the subscribing .witnesses ought to attest not 
only the act of signing, but the sanity of the testator at the time. Withinton v. 
Withinton, 7 Misso. B. 589. But the, statute, in express terms, only requires that 
the will " be attested by two or more competent witnesses, subscribing their names 
to the will, in the presence of the testator." Rev. St. 1835, p. 617; Rev. St. 1845, 
p. 1079. 

VOL. III. 6 . 



62 . Title XXXVIII. Devise. Ch. V. s. 30—33. 

witnesses. Then, as in other cases, the proof pnist be 
55 * circumstantial ; * and here were circumstances. I. Three 

witnesses had set their names, and it must be intended 
that they did it regularly. II. One witness was an attorney of 
good character, and might be presumed to understand what ought 
to be done, rather than the contrary ; and there might be cir- 
cumstances, to induce a jury to believe that the witnesses set their 
hands in the presence of the testatrix, rather than the contrary ; 
and it being a matter of fact, was proper to be left to them. The 
plaintiff was nonsuited. 

31. The same question arose in a subsequent case, on a trial 
at bar in ejectment. The defendant made title under a will, the 
attestation of which was in these words, " Signed, sealed, puK 
lished, and declared as and for his last will in the presence of us, 
A, B, and C." The witnesses were all dead, and their hands 
proved in common form. It was objected that this was not an 
execution, according to the Statute of Frauds ; and the hands of 
the witnesses could only stand as to the facts they had subscribed 
to ; and signing in the presence of the testator was not one. 
The Court, on the authority of Hands v. James, said, it was evi- 
dence to be left to a jury or a compliance with all the circum- 
tances. A verdict was given for the will, (a) 

32. By the Roman law, it was necessary that all the wit- 
nesses sbould be present at the same time ; and some doubts 
were formerly entertained whether the same circumstance was 
not required by the Statute of Frauds ; but it is now fully settled, 
that although the witnesses attest at different times, yet it is 
sufficient, (ft) 1 

33. A will of lands attested by three witnesses, who at several 
times subscribed their names, at the request of the testator, but 
were not present at once together, was decreed to be well attested, 
within the statute, (c) 

(a) Croft v. Pawlet, 2 Stra. 1109. 

(i'l (2 Greenl. -Evid. § 676. Dewey v. Dewey, 1 Met. 349. 4 Kent, Comm.,516. Dunlap v. 
Dunlap, 4 Desan. 312. Elbecky. Granberry, 2 Hayw. 232.) (c) Anon. 2-Ch. Ca. 109. 



1 The statute of 1 Vict. c. 26, §'9, requires that all the witnesses be present at the 
time of signing or acknowledgment. And this is deemed to require the attestation of all_ 
at that time. In re Simmonds, 8 Curt. 79 : Moore v. King,* Ibid. 243. See 1 Jarm. on 
Wills, [72] note by Perkins. 



Title XXXVIII. Devise. Ch. V. 5. 34—35. 63 

34. ,0n a bill of review, to reverse a decree of Lord Notting- 
ham, for the sale of lands, subjected by a will to the payment of 
debts; the*will was written in the testator's own hand, and 
published in the presence of three several witnesses, at three 
several times, and they all attested it in his presence. One of 
the objections to the decree was, that it was no good will within 
the Statute of Frauds, because not attested by all the witnesses 
at one time. Lord Keeper 'Wright held a publication of 

a will * before three witnesses, though at three several *56 
times, good within the statute, (a) 

35. In ejectment, a special verdict was .found, that a testalor 
executed his will in the presence of two witnesses, who attested 
the same in his presence ; that four years after, the testator went 
over his name with a pen, in the presence of a third witness, 
who subscribed his name in* his presence, and at his request. 
Mr. Henley argued for the heir at law, that the statute requiring 
three witnesses to subscribe in the testator's presence, must in- 
tend they should be all present together, else there was not that 

degree of evidence which the statute required ; for an attestation 
of three witnesses, at different times, had only the weight of one 
witness. Witnesses to a will not only attest the due execution 
of it, but likewise the capacity of the testator at the time of exe- 
cution. A man might be sane, at the time when two of the 
witnesses attest, and insane when the third attests. Iif could not 
be considered as a will^ till the third witness had signed it, for 
that completed the act. (b) 

Mr. Banks argued, on behalf of the devisee, that a will, exe- 
cuted in the presence of three witnesses, though they attested it 
at different times, was good, within the Statute of Frauds.; be- 
cause that statute did not require that all the witnesses should 
be present at the same time. The requisites under the statute 
were, that the testator should sign, in the presence of three wit- 
nesses at least, and that they should attest in his presence. It 
would therefore be adding new requisites, which the act did not 
mention, and in fact making a new law. 

Lord Ch. J. Lee. — " This case depends on the words of the 
statute; the requisites in the statute are, that the three witnesses 
should attest the signing of the testator ; but it does not direct 

(a) Cook v. Parsons, Preo. in Cha. 184: (J) Jones v. Lake, 2 Atk. 176, n. 



64 Title XXXVIII. Devise. Ch. V. 5. 35—37. 

that the three witnesses should be all present at the same time. 
There has been no determination as to this point. In the case of 
Cook v. Parsons, (a) the testator's signing was held good, though 
it was not before three witnesses at the same time ; and the 
Court only doubted whether the testator's barely owning the 
subscription to be his, before one of the witnesses, was good ; 
but there was no doubt as to the validity of the will, from the 
execution at different times. Here you have the oaths of three 
attesting witnesses ; this is the degree of evidence required 
57 * by the statute ; and the same credit is given to three *per- 
• sons, at three different times, as at the same time. "We 
cannot carry the requisites further than the statute directs ; the 
act is silent as to this particular ; it would therefore be making 
a new requisite. The signing is the same act reiterated ; the 
testator in the principal case went over his name again, and 
declared it to be his last will." Judgment against the heir at 
law. (b) 

36. It was formerly held, that every will and every codicil must » 
be separately attested by three witnesses^ ; for the attestation of 
two witnesses to a will, and of a third witness to a codicil, an- 
nexed to such will, was held insufficient; nor could the attes- 
tation of a codicil operate in any case as the attestation of a will, 
to which it was declared to be annexed. / 

37. A person made his will in writing, by which he devised 
lands, and sealed and published it in the presence of two wit- 
nesses only, who subscribed it in His presence. A year after, he • 
caused another writing to be prepared, which recited that he had 
made his will, and confirmed it in all things ; and said, "and my 
will is, that this codicil be taken to be of force, and part of my 
will."(c) 

It was found that the codicil was attested by two witnesses, 
one of whom was witness to the will, the other not ; and it was 
further found, that the codicil was distinct from, and not annexed 
to the will. 

Lord Ch. J. Holt delivered the opinion of the Court, that this 
was not a good will within the statute, for want of three attest- 
la) Ante, s. 34. (S) Westbeech v. Kennedy, 1 Ves. & B. 362. Vide, 1 Ves. 14, 16. 
(c) Lee v. Libb, Rep. Temp. Holt, 742. 3 Salk. 395. 1 Show. 69, 88. (Dunlap v. Dun- 
lap, Desau. 312.) 



Title XXXVIII. Devise. Ch. V. s. 37—41. 65 

ing witnesses. The codicil would not carry the land without the 
will, nor the will without the codicil. And the three witnesses 
within the statute ought to be witnesses to the whole. 

38. A person devised freehold lands to a college, by a will 
written with his own hand, but not attested by any witness. 
The testator afterwards made a codicil, attested by four witnesses, 
wherein he recited his will, (a) 

It was determined that the attestation of the codicil could not 
operate so as to render the will valid ; for the codicil might be 
executed in another place, and the witnesses might not either 
see or know any thing of the will. 

39. The doctrine laid down in the above case, appears doubt- 
ful, for in* Habergham v. Vincent, which will be stated hereafter, 
Mr. J. Wilson, whom Lord Loughborough called to his assistance, 
is reported to have said, — " I believe it is true, and I have 

* found no case to the contrary, that if a testator in his *58 
will refers expressly to any paper already written, and has 
so described it that there can be no doubt of the identity, and 
the will is executed in the presence of three witnesses, that 
paper makes part of the will, whether .executed or not ; and such 
reference is the same as if he had incorporated it ; because words 
of relation have a stronger operation than any other. As Lord 
Coke says, in his comment on Littleton, where Littleton is speak- 
ing of the word heirs being necessary to raise an estate of in- 
heritance, Lord Coke makes this exception ; if A enfeoff B and 
his heirs, and B enfeoffs A in as full and ample a manner as A 
has enfeoffed him, that will give the inheritance, without the 
word heirs ; and it shall have effect by relation." (b) 

40. Where a codicil is written on the same sheet of paper with 
a will, the attestation of the codicil by three witnesses establishes 
the will, though such will be not duly attested. 

. 41. Sir James de Bathe, by his will, attested by only one wit- 
ness, appointed Lord Fingall and Mr. Cruise to be guardians to 
his children. By a codicil written on the same sheet of paper, 
the testator expressed himself in the following manner: — " I do 
hereby make and declare this to be a codicil to my will hereunto 
annexed, in which said will I am disposed to make some altera- 

(a) Att.-Gen. v. Barnes, Gilb. E. 5. Free, in Cha. 270. 
• (6) 2 Ves. 228. 3 Burr. R. 1775. 

'6» 



66 Title XXXVIII. Devise. Ck. V. s. 41—43. 

tions." He then made alterations as to legacies, and concluded 
thus : " And in all other respects confirm my said will hereunto 
annexed." The codicil was attested by three witnesses, (a) 

Mr. Alexander contended, on behalf of the guardians, that 
this appointment was clearly sufficient ; the effect of a codicil, 
on the same sheet of paper with the will, expressly referring to 
it, as annexed, and confirming it in all respects, except as to the 
alteration of some legacies, being a reexecution and republica- 
tion, as it would be. in the case of a devise of land, there being 
no difference in this respect between the two statutes. 

Sir "W. Grant, M. R., held clearly, that the appointment of 
guardians was good ; the codicil, attested by three witnesses, 
adopting the will, and amounting to a reexecution and repub- 
lication ; and a devise of land by the will would have been made 
good by the codicil, (b) 

42. If a will be made at several times, although the parts be 
distinct, and separately signed by the testator ; yet if it appear 

from circumstances to have been the intention of the tes- 
59* tator, * that both instruments should constitute but one 

will, and not a will and a codicil, an attestation of the 
last part by three witnesses will amount to an attestation of the 
whole. 

43. J. Griffin, on the 2d of May, 1752, wrote upon a sheet of 
paper, with his own hand, as follows : — " Know all men by 
these presents, that I John Griffin, make the after-mentioned my 
last will and testament." He then proceeded to give two free- 
hold houses, and subscribed it ; but there was no witness. In 
January, 1754, he wrote on the same sheet of paper the following 
words : "Memorandum, whereas I have laid out, &c. on a lighter, 
&c. and the barge called The Lemon, &c. all shall be at my 
wife's disposal ; and this not to disannul any of the former part 
made by me, the 2d of 'May, 1752, except that my wife shall 
not be liable to pay to my son John, &c. Witness my hand, 
John Griffin." (c) 

The will was written on the first and second sides of a sheet 
of paper, and the memorandum was begun either upon the end 
of the second, or the beginning of the third, and written upon 

(a) De Bathe v. Fingall, 16 Ves. 167. 

(J) 1 Ves. & Bea. 445. See also Doe v. Evans, 1 Crom. & Mee. 42. 

(c) Carletons. Griffin, 1 Burr. 549. 



Title XXXVIII. Devise. Ch. V. s. 43—44. 67 

the third side; and all the second writing related only to the 
personal estate. The testator subscribed this in the presence of 
three witnesses ; then he took the said sheet of paper in his hand, 
and declared it to be his last will and testament, in the presence 
of the said three witnesses ; and then delivered it to them, and 
desired they would attest and subscribe it in his presence, which 
they accordingly did. 

The question was, whether this will was duly attested, accord- 
ing to the Statute of Frauds. 

Lord Mansfield said, the case was accurately put ; for it was 
not stated to be either a will or a codicil, but a sheet of paper 
written, &c. At first, in 1752, the testator did not know that 
any witnesses were necessary ; in 1754 he had found they were 
necessary ; then he made a subsequent disposition, which was a 
memorandum to be added to it ; but he did not call it a codicil, 
nor did the case state it to be so. He plainly considered the 
whole as one entire disposition, and he expressly declared in the 
latter, that he did not thereby mean to disannul any part of the 
former devise or dispositions. There is not a tittle in the latter 
that relates to the real estate ; therefore the only intent of having 
the three witnesses was, and must be, to authenticate the former. 
Then the publication of it was, as of a will ; he took up 
the * sheet of paper and said, it is my will ; and certainly * 60 
he did not mean a part only, but the whole of it ; and 
he desired them to attest it : all this must relate to the whole 
that was written on the paper. Adjudged that the will was duly 
attested. 

44. With respect to the persons who are capable of being wit- 
nesses to a devise, the Statute of Frauds only mentions the word 
credible ; and therefore all those who are capable of being 1 wit- 
nesses in any other matter, rhay also be witnesses to a will. 1 



i It is sufficient if the witnesses were competent at the time of attestation. If they 
have subsequently become incompetent, the will may be established by secondary 
evidence, as in other cases. The very able judgment of Lord Camden, to this effect, 
though overruled at the time by a majority of the Court, is now received as the true 
exposition of the statute. Doe v. Hersey, 4 Burn, Eccl. L. 88, also reported in a note 
to Cornwall v. Isham, 1 Day, 41-88. See Brograve v. Winder, 2 Ves. 634, 636 ; Amory 
v. Fellows, 5 Mass. 219, 229 : Anstey v. Dowsing, 2 Stra. 1253', 1255. 

In regard to the competency of witnesses to a will, as affected by their interest, the 
same rule governs here as in other cases, unless changed by statute ; namely, that 



68 Title XXXVIII. Devise. Ch. V. s. 44—45. 

The Judges were, however, formerly very strict, as to the com- 
petency of the witnesses to a devise ; for neither a devisee, lega- 
tee, or creditor, was allowed to be a competent witness to a 
devise. 

45. This occasioned the statute 25 Geo." II. c. 6, by which it 
is enacted, section 1 : " That if any person attest 'the execution 
of any will or codicil, to whom any beneficial f devise, legacy, 
estate, interest, gift, or appointment, except charges on lands, 
tenements, or hereditaments, for payment of any debt or debts, 
shall be thereby given or made ; such devise, legacy, estate, in- 
terest, or appointment shall, so far only as concerns such person 
attesting the execution of such will or codicil, or any person 

where the person takes a personal and beneficial interest under the will, he is incompe- 
tent to testify in its support ; but that where his interest is not personal or beneficial, 
but is merely fiduciary, he is competent, unless he is personally responsible, as a party, 
for costs. In some States, the'executor is so responsible, at least in the first instance; 
while in others he is not ; and hence the diversity in the decisions on this point. See, 
accordingly, against the competency, Sears u. Dillingham, 12 Mass. 358; Fox a. 
Whitney, 16 Mass. 118; Vansant v. Boileau, 1 Binn. 444; Beard v. Cowman, 3 Har. 
& McH. 152 ; Fenwick v. Forest, 6 Har. & J. 415 ; Vinyard v. Brown, 4 McCord, 24 ; 
Hayden v. Loomis, 2 Root, 350. So, the executor's interest in the commissions allowed 
him on the personalty, will exclude him as a witness. Tucker v. Tucker, 5 Ired. Law 
Rep. 161 ; Taylor v. Taylor, 1 Richard. 531. So, where he has already paid out one of 
the legacies. Hickle y. Eichleberger, 2 Barr, 483. [Nor is an executor, though re- 
nouncing, a. competent witness to prove the will, where he is by the will appointed a' 
trustee by name. Burritt v. Silliman, 16 Barb. 198. See also Workman v. Dominick, 3 
Strobh. 589. Nor is a legatee a competent witness, if he merely assigns his claim in 
order to prove the will on which it depends. Haus a. Palmer, 21 Penn. (9 Harris,) 
296.] 

In favor of the competency, see McDaniel's Will, 2 J. f. Marsh. 331 ; Tucker v. 
Tucker, supra; Den v. Allen, 1 Penningt. 35 ; Comstock u. Hadlyme, 8 Conn. 254; 
Coalter <,. Bryan, 1 Gratt. 18; Henderson v. Kenner, 1 Richard, 474; Overton v. 
Oyerton, 4 Dev. & Bat. 197. See 1 Jarm. on Wills [66] note by Perkins, 2d ed. So, 
as to legatees and devisees in trust. Haven v. Hilliard, 23 Pick'. 10 ; Cornwall v. 
Isham, supra; Eustis v. Parker, 1 N. Harnp. 273. See further, 1 Greenl. Evid. § 333, 
353 ; 2 Greenl. Evid. § 691, and cases there cited. Other cases as to 'the competency 
of witnesses in support of wills, are, Hall v. Hall, 17 Pick. 373 ; Clark v. Vorce, 19 
Wend. 232; Deakins v. Hollis, 7 G. & J. 311 ; Tucker v. Sanger, 1 McCl. 435 ; Snell- 
grove v. Snellgrove, i Desau. 274 ; Shaffer v. Corbett, 3 Har. & McH. 513 ; Kerns v. 
Soxman, 16 S. & R.. 315; [Snyder u. Bull, 17 Penn. 54; Search's Appeal, 13 lb. 
108.] 

It.In Phipps v. Pitcher, 6 Taunt. 219, it was determined, that an executor of a 
testator, possessed of real and personal estate, clothed with a trust to pay debts, and 
to lay out money for the benefit qf the testator's children, and with a power to sell 
freehold lands in fee, but taking no beneficial interest under the will, was a good attest- 
ing witness.] 



Title XXXVIII. Devise. Ch. V. s. 45. 69 

claiming under him, be utterly null and void ; and such" person 
shall be admitted as a witness to the execution of such will or 
codicil." 

Section 2. " In case by any will or codicil any lands, tene- 
ments, or hereditaments, shall be charged with any debt or debts ; 
and any creditor, whose debt is so charged, shall attest the ex- 
ecution of such will or codicil; every such creditor, notwith- 
standing such charge, shall be admitted as a witness to the 
execution of such will or codicil, within the intent of the said 
act." 

Section 6. " Provided always, that the credit of every such 
witness so attesting the execution of any will or codicil,dn any 
of the cases in this act before mentioned, and all circumstances 
relating thereto, shall be subject to the consideration and deter- 
mination of the Court and the jury, before whom any such 
witness * shall be examined, or his testimony or attesta- * 61 
tion made use of, or of the court of equity in which the 
testimony or attestation of any such witness shall be made use 
of; in like manner to all intents and purposes as the credit 
of witnesses in all other cases ought to be considered and deter- 
mined."! ' 



[t After some conflict of opinion and authority, it seems now settled, that the 
above statute does not apply to wills merely of personal estate. In Lees v. Sum- 
mersgill, 17 Ves. 508, Sir William Grant, M. R. held (1817) that the above statute 
did extend to all wills, and that a legacy given by a will merely of personal -estate 
to a person who was a subscribing witness was void ; but in Brett v. Brett, 3 Add. 
Ece. Rep. 210, subsequently affirmed (May, 1827,) by the High Court of Delegates, 
1 Hagg. Ecc. Rep. 58, u. (a.) it was decided otherwise, namely, that the statute did not 
apply to such wills. The latter opinion has been followed by Sir John Leach, M. R., in 
Emanuel ;-. Constable, (June, 1827,) 3 Russ. 436, and by Sir Launcelot Shadwell, in 
Foster v. Banbury, 3 Sim. 40, (1829.)] 

' The subject of the statute of 25 Geo. 2, c. 6, respecting the effect of a devise or 
legacy to an attesting witness, has been legislated upon in almost all the States in the 
Union. In South Carolina, the English statute is of force. Taylor w. Taylor, supra; 
[Cannon v. Setzler, 6 Rich. 471.] But in Tennessee, it is not. Gass v. Gass, 3 Humph- 
278. Generally speaking, the statute provisions here are the same as those of the Eng- 
lish statute, in the sections quoted in the text ; with a few modifications, which will be 
mentioned. 

In the States of Maine, Virginia, Ohio, Kentucky, Mississippi, and Alabama, the pro- 
vision is universal in its terms, annulling the title of the attesting witness, under the 
will, in the case of " all devises and bequests " — " any devise," &c. — " a devise, &c., 
made to him. But whether this language is to be applied to fiduciary devises, or those 
not beneficial in their nature, is not known to have been judicially determined. In the 



70 Title XXXVIII. Devise. Ch. V. s. 46—50. 

46. Two celebrated cases have been decided respecting the 
competence and credibility of witnesses to a will. The first is 
that of Wyndham v. Ghetwynd, in the Court of King's Bench ; 
and the second is that of Doe ex dem. Hindson v. Kersey, 
in the Court of Common Pleasv 1 ' But as they relate to wills 
made before this statute, it is unnecessary to state them, (a) 

47. A legatee may be a witness against a will, because he 
swears against his own interest, and so is the strongest evi- 
dence, (b) 

48. An infamous person is not a competent witness to a will ; 
and therefore it was held, in a modern case, that a person' who 
had bean convicted of stealing sheep was not a competent wit- 
ness to a will ; for it was the crime that created the infamy, and 
took away a person's competency, not the punishment, fc) 

49. An estate in fee on the determination of a life-eslate was 
devised to the wife of A. B. A. B. was one of the three witnes- 
ses who attested the will. Testator died in 1779, and the wife 
of A. B. in 1813, before the life-estate was determined. A case 
was sent by the M. E. for the opinion of the K. B., and they cer- 
tified their opinion to be that the will was not duly executed, so 
as to pass real estate to A. B.'s wife, (d) 

50. A devise must also be published ; that is, the devisor must 

(a) 1 Burr R. 414; 4 Bum's Eo. L. p. 9?; Ed. 1824. 

(b) Oxendon v. Penerice, Salk. 691. (c), Pendook v. Maokender, 4 Burn's Ecc. Law, 95. 
(d) Hatfield v. Thorp, 5 Bar. & Aid. 589. Holdfast v. Dowsing, 2 Str. 1253. 4 Burn's Ecc 

Law, 97. ■ Carthew, 514. 



other States, the rule is applied in terms to ,: beneficial " devises and interests alone, as 
in the English statute. 

A qualification to this rule is admitted in several States, by limiting its application to 
cases, where there is not the statute-number of competent witnesses to the will, exclu- 
sive of the devisee ; or, as it is expressed in some of the statutes, where the will cannot 
otherwise be proved. This limitation is found in the statutes of Maine, Massachusetts, 
New Hampshire, Vermont, Connecticut, Virginia, Ohio, Michigan, Kentucky, Indiana, Illi- 
nois, Missouri, Mississippi, Arkansas, and Alabama. 

In Vermont, this rule, annulling the gift to a witness, is further limited to cases where 
the witness is not an heir at law to the. testator. But in "New York, Virginia, Ohio, 
Michigan, Kentucky, Indiana, Illinois, Mississippi, Missouri, Arkansas, and Alabama, if . 
the witness would be entitled to a share of the testator's estate if there were no will, 
the statutes provide that he shall still receive that share, but not beyond the value in- 
tended to be given him by the will. [Caw v. Robertson, 1 Selden, (N. Y.) 125.] 

' The case of Doe v. Kersey, and the able argument of Ld. Camden, in cxlenso, may 
be found in a note in 1 Day, Rep. p. 41-88. 



Title XXXVIII. Devise. Ch. V. s. 50— 52. 71 

do some act, from which it can be concluded that he intended 
the instrument to operate as a will or devise. And Lord Hard- 
wicke has mentioned a case, where, upon a trial at bar in the 
Court of K. B. the question was, whether the testator had pub- 
lished his will, for there was no doubt of his executing it 
in the * presence of three witnesses, or of their having at- * 62 
tested it in his presence ; which showed that publication 
was, in the eye of the law, an essential part of the execution of 
the will, and not a mere matter of form, (a) 

51. The words, " signed and published by the said A. B. as and 
for his last will and testament," are a sufficient publication ; and 
the delivery of a will, as a deed, has been also held to be a 
sufficient publication, (b) 

• 52. A will was delivered by a testator as his act and deed ; and 
the words " sealed and delivered" were put above the place, where 
the witnesses were to subscribe. It was adjudged, that this was 
a sufficient publication, (c) l 

(a) 3 Atk. 161. (6) Peatc v. Ougly, 1 Com. E. 196. 

(c) Trimmer v. Jackson, 4 Burn, Eo. L. 116. See Ward v. Swift, 1 Or. & Mee. 171. 
Supra, Vol. IV. p. 192. 

1 No formal and separate act of publication is necessary, unless it is made so by the 
express language of a statute. It is sufficient, if it appears that the testator intended 
the transaction as a testamentary act ; Warren v. Postlethwaite, 9 Jur. 721 ; 2 Colly. 
Ch. Ca. 108; and this may be inferred from circumstances ; Wallis v. Wallis, 4 Burn's 
Ecc. L. 114 ; no form of words being requisite. Maberly v. Sison, 1 Jur. 558. Attes- 
tation of delivery has been held equivalent to attestation of publication. Ward v. Swift, 
1 Cr. & M. 175. So, the attestation of signing, sealing, and delivery has been deemed 
sufficient. Curtels v. Kenrick, 3 M. & W. 461. So, publication to one witness only. 
White v. British Museum, 6 Bing. 310. So, the act of writing, signing and attesting 
a will. Ray v. Walton, 2 A. K. Marsh. 73 ; Black v. Ellis, 3 Hill, S. Car. Rep. 68. 
And see Lempriere v. Valpy, 5 Sim. 108 ; Moodie v. Reid, 7 Taunt. 355 ; 4 Mad. 566: 
Simeon v. Simeon,_4 Sim. 555 ; Jones v. Hartley, 2 Whart. 103 ; 2 Greenl. Evid. § 675, 
and cases there cited; 4 Kent, Comm. 515; Brinckerhoff r, Remsen, 8' Paige, 488; 26 
Wend. 325 ; Swift v. Wiley, 1 B. Monr. 118; [Verdier u. Verdier, 8 Rich. S. C. 135. 
The formal execution of a will is held in Delaware a publication. Smith v. Dolby, 
4 Harring. 350.] 

In the case of a will, made under a power explicitly requiring a publication, greater 
strictness has been held necessary. See Allen o. Bradshaw, 1 Curt. 110; Moodie 
v. Reid, supra. 

In New York, New Jersey, and Arkansas, a. distinct act of publication is made neces- 
sary, by statute. Supra, § 14, note. 

On the general subject of publication, Gibbs, C. J., in the case of Moodie v. Reid, 
supra, expressed his opinion in the following terms : — " A will, as such, requires no 
publication ; be publication what it may, a will may be good without it. (See Powell 



72 Title XXXVIII. .Devise. Ch. -V. 5. 53. 

53. It has been held, in seyeral cases, which will be stated 
hereafter, that where a person, by a will duly attested, charged 
his lands with the payment of his debts and legacies, a legacy 
afterwards given by a codicil, not duly attested according to the 
Statute of Frauds, but sufficient to pass personal estate, would be 
good. From which it was concluded, that a person might, by 
means of a will duly executed, empower himself to make a future 
disposition of lands, by another instrument, not duly executed. 
This doctrine, if established, would have been attended with the 
most serious consequences ; for, as Mr. Fearne observes : — " If a 
man might, by a will duly attested, devise his lands upon such 
trusts as he should appoint by any other instrument, it would in 
effect amount to a repeal of the Statute of Frauds, in respect to 
the solemnities of testamentary dispositions of lands. A mam 
would have nothing to do but, on his coming of age, to make 
one general repeal 6f that statute, in regard to himself, by devis- 
ing his whole real estate to some nominal persons, and their 
heirs, upon such trusts, &c. as the testator should afterwards by 
any writing appoint ; and he might, by reference to such repealing 



on Devises, 54, et seq ; I Roberts on Wills, chap. 1, sect. 1 ; 1 Mass. Rep. 257 ; Swett, 
et al. v. Boardman, and note.) But here the power is to be exercised by a will signed 
and published. Therefore there must be some publication here; the will must be 
signed, published, and attested ; and there must therefore be some- attestation here, of 
signing and publication. Though the most respected late Chief Justice of this Court 
differed from the other Judges, in Wright v. Wakeford, it is established by that case, 
that the witnesses must attest every thing that is necessary for the execution of the 
power. Here the witnesses have clearly attested the signing ; the question is, whether 
they have attested the other'formality, of publication, in attesting and signing. If the 
act of the testatrix, in calling on the witnesses to attest her will, be a publication of 
it, then their attesting that she signed it, attests her publication also, because they attest 
that by which she publishes it. I called on the bar to say what publication was ; I do 
not wonder that I had no answer ; for though the parties used the term publication, it 
is a term, in this sense, unknown to the law. I know what publication is, if spoken of 
many things ; as for instance of a libel. I know what an uttering is ; if a man puts 
forth base money in certain cases, it is an uttering ; but I do not know what the publi- • 
cation of a will is. I can only suppose it to be that by which a person designates that 
he means to give effect to a paper as his will. I throw this out, that it may not be sup- 
posed, that if our decision should be adverse to that which has been argued, it is there- 
fore contrary to the cases that have been decided in this Court." See 7 Taunt. 561, 
562. 

The time of publication of a will is ordinarily referred to its date ; but this is not 
conclusive; it may be proved aliunde to have been made at a subsequent day. Bag- 
well v. Elliott, 2 Rand. 190. 



Title XXXVIII. Devise. Ch. V. s. 53—54. 73 

will, at any time make a testamentary disposition of the estates, 
without the least attention to the ceremonies required by the 
statute. This would let in all the inconveniences of frauds and 
perjuries intended to be prevented by the last-mentioned statute, 
in regard to testamentary dispositions of land ; nay, the legal 
absolution might possibly be extended to the Statute of Wills as 
well as that of Frauds, &c, and by considering the first interme- 
diate will a sufficient compliance, as well with the requi- 
sition of writing, required by one statute, as *of the *63 
ceremonies of execution by the other, a parol appoint- 
ment of the trusts might be attempted, under a power worded 
for that purpose, in the original absolving will." (a) 

This opinion of Mr. Fearne has been established as good law, 
by the following case. 

54. Samuel Hill, by a will duly attested, devised his freehold 
estates to five trustees, and the survivors and survivor of them, 
their and his heirs and assigns, to the use of his granddaughter 
for life, remainder to her first and other sons in tail male, re- 
mainder to her daughters as tenants in common in tail general, 
remainder unto or for the use of such person or persons, and for 
such estate or estates, as he, by any deed or instrument to be 
executed by him, and attested by two or more credible wit- 
nesses, should direct, limit, or appoint. The devisor, by a deed 
poll dated the day after, under his hand and seal, attested by 
two witnesses, after reciting his will, in pursuance of the power 
thereby reserved to him, limited and appointed his estates, after 
the death of his granddaughter, and failure of her issue, to the 
first and other sons of his son, &c. A question was referred by 
the Court of Chancery to the Court of King's Bench, whether 
the two instruments, taken together, were, at the time of the 
death of the devisor, sufficient to pass any estate or interest in 
the freehold premises, not given by the first instrument, (b) 

The Court of King's Bench certified their opinion, that the 
two instruments taken together were not sufficient to pass any 
estate or interest in the freehold premises, not given by the first 
instrument ; on the ground that the second instrument was a 
deed, and not a will. 

The cause coming on for further directions, Lord Lough- 
fa) Feame, Opin. 435. (J) Habergham v. Vincent, 6 Term R. 92. 

vot. in. 7 



74 Title XXXVIII. Devise. Ch. V. s. 54—57. 

borough called to his assistance Mr. J. Buller, and Mr. J. Wil- 
son, and they were all of opinion that the second instrument 
was testamentary; but not being attested according to the 
Statute of Frauds, could have no operation or effect, (a) 

55. The Statute of Frauds requires, that all devises of lands 
or tenements shall be executed in the manner above stated ; and 
it has been determined that all devises by which terms for years, 
or other interests arising out of lands, are created, or by which 
powers to sell or charge lands are given, are within the statute. 
Therefore, where an estate is devised for a term of years, or a 

sum of money is given originally out of land, a will con- 
64* taining 'such a charge must be executed in the manner 

prescribed by the statute ; because it is the same as a de- 
vise of the land, since the term of years is an interest in the land, 
and money thus given can only be raised by a mortgage or sale 
of the land, (b) 

56. There is one exception to this rule, which has been already 
mentioned, namely, where a will duly executed according to the 
Statute of Frauds, contains a general charge on the testator's 
lands, in aid of his personal estate, it will extend to legacies 
given by a subsequent will or codicil, not duly attested, (c) f 

57. Eichard Boughton, by a will, executed according to the 
Statute of Frauds, gave his sister £400, and the remainder of his 
estate, after payment of his debts and legacies, to his brother. 
By another will, not duly attested, he gave to the same sister 
£100, and to another sister £400, and all the rest of his estate, 
real and personal, to his brother. One of the questions in this 
case was, whether the legacies, given by the second will, could 
be considered as charged upon the land, by the first will ; the 

(o) 2 Ves. 204. Vide, Kose v. Cunynghame, infra, s. 60. (J) 2 Atk. 272. 2 Vez. 179. 

(c) Hyde v. Hyde, 1 Ab. Eq. 409. 



[t Lord Eldon, in the case of Wilkinson v. Adam, 1 Ves. & B. 446, observes, in 
reference to a charge of legacies by a will with three witnesses, "though it is settled 
that legacies given by an unattested paper, will he included in that charge, that has 
been met at least with this symptom of disapprobation, that it is remarked as a solitary 
case ; and if by a will duly attested the devisor directs an estate to be sold, though he 
could have exhausted that fund by legacies, he could not by a will unattested, give 
away any part of it." See also Hooper v. Goodwin, 18 Ves. 156. Upon the subject of 
legacies charged upon real estate, see 1 Roper's Legacies, c. 12, ed. 1828.] 



Title XXXVIII Devise. Ch. V. s. 57—58. 75 

testator having subjected his real estate to the payment of his 
debts and legacies, (a) 

Lord Hardwicke. — " I am of opinion, that the lesser legacies, 
given by the second will, are chargeable upon the lands devised 
by the first. Consider them first as new original legacies ; the 
second will is a complete disposition of his personal estate ; and 
if a man charges his lands by his will, with all his debts and 
legacies, and afterwards gives other legacies by a codicil, not 
properly executed within the Statute of Frauds, the new lega- 
cies would affect the land, notwithstanding the insufficiency of 
the codicil to pass lands ; because this is considered as done in 
execution of a power which the testator had reserved to himself, 
by charging his lands with his debts and legacies in general ; 
according. to Masters v. Masters, 1 P. Wms. 421. And there is 
no more inconvenience in this, than in a charge upon his 
lands* of all his debts; where debts contracted at any *65 
time after, during his life, would certainly affect all his 
lands. So if a man makes two wills, one of his real, the other 
of his personal estate, legacies given by the second will, though 
executed only so as to pass the personal estate, would still affect 
the land, if there was a general charge of his debts and legacies 
upon the land, by the first. But in our case, the second legacies 
are not new legacies, they are but a modification of the former ; 
and had they been given in the- same manner as the first, there 
could not have been a doubt of this matter. The difficulty 
arises only from the difference of interests given by the one 
will, and the other ; but still it is only an alteration of the in- 
tent of the testator as to the quantum, and a modification of the 
former ; they remain part of the former, and the revocation but 
pro tanto." (b) 

58. This doctrine is founded on the principle, that a charge of 
debts or legacies amounts to no more than making the real estate 
auxiliary to the personal ; or in other words, directing it to be 
converted into, and applied as part of the testator's personal 
estate, and in aid thereof. And Mr. J. Buller, in the case of 
Habergham v. Vincent, cited the case of the Duke of Bolton v. 
Williams, in which a term for years was created by a will duly 
attested, for payment of all such legacies as the testator should 

la) Brudenell v. Boughton, MS. Kep. 2 Atk. 268. (5) Vide 5 Term E. 95. 



76 Title XXXVIII. Devise. Ch. V. s. 58—60. 

mention in a codicil. . He afterwards made a codicil unattested, 
giving legacies and annuities ; the annuities were held to be 
legacies. And Lord Loughborough observed, that all the cases 
of this kind were not cases of a primary, substantive, and inde- 
pendent charge upon the real estate, but a charge upon it in aid 
of the personal, which was primarily charged ; and that the Stat- 
ute of Frauds did not prevent a man from creating, by will, a 
fluctuating charge upon real, in aid of personal, (a) 

59. But if a person, by will duly attested, charges his real 
estate with such legacies and annuities as he shall afterwards 
give and charge upon that estate, whether attested or not, a 
charge by an unattested codicil will not be godd. 

60. A person by his will duly executed, devised to trustees, 
their heirs, executors, &c. a plantation in the island of Grenada, 
upon trust, by and out of the produce thereof, to pay off debts 
and incumbrances ; and also to pay off and discharge all such 
annuities, legacies, or bequests, as he should give by his will, or 

by any codicil or codicils thereto, or by any writing or 
66 * writings *at any time or times after signed by him, or in 
his own handwriting, whether witnessed or not. (b) 

The testator, by an unattested codicil, gave an additional 
annuity of £100 to his wife, out of his Grenada estate ; and the 
question was, whether this codicil was sufficient to charge the 
Grenada estate. 

Sir W. Grant, M. R. — " The ground, upon which it is con- 
tended that this additional annuity of £100 might be good as a 
charge upon the Grenada estate is, that the estate being once 
charged with all legacies and annuities, the testator may after- 
wards give either legacies or annuities by an unattested codicil. 
That the rule is so settled in many cases ; and if this were that 
case, unquestionably it is too well established to be now dis- 
turbed ; though it may be doubted, whether it is perfectly consist- 
ent with the Statute of Frauds ; for in effect the testator does dis- 
pose of his land by an unattested codicil, when he is at liberty to 
burden it with legacies so given. However, in this case, the tes- 
tator does not charge the Grenada estate with legacies or annui- 
ties generally, but with such only as he shall afterwards give and 

(a) Fearne's Op. 434. 8 Ves. 495. 2 Ves. 231. Smart v. Prujean, 6 Ves. 660. 
(6) Rose v. Cnnynghame, 12 Yes. 29 



Title XXXVIII. Devise. Ch. V. s. 60. 77 

charge upon that estate ; so that, as legacy or annuity, it is not 
at all chargeable upon the estate ; but it is as he has thought fit, 
by an unattested codicil, to declare, that it shall be a charge upon 
the estate. The reason that debts and legacies may be a burden 
upon the estate, is, that they constitute a fluctuating charge. It 
is impossible previously to ascertain what debts a man may owe 
at the time of his death; and it is difficult to ascertain, when he 
is making his formal and regular will, what legacies he may 
think fit, or his fortune shall enable him to give. The Court 
has therefore said, that when he has, by a will duly executed, 
charged debts and legacies, it is only necessary to show that 
there is a debt, or that there is a legacy, in order to constitute a 
charge : for the moment that character is shown to belong to the 
demand, you show that it is already charged upon the estate. 
Then an unattested instrument is itself perfectly competent to 
give a legacy ; and when given, you predicate of it, that it is a 
legacy ; and then the charge immediately attaches, by virtue of 
the executed will. But here, the testator says, he does not now 
determine that all annuities, and all legacies he shall hereafter 
give, shall be charges ; but only that if at some future period 
he shall think proper to declare legacies and annuities 
* to be charges upon this real estate, then the trustees * 67 
shall pay them out of the real estate. Therefore not 
only the legacy is to be found, but also the will of the testator, 
to make it a charge upon this estate ; without which it is not a 
charge. That is only an attempt to reserve, by a will duly exe- 
cuted, a power to charge by a will not duly executed. It is the 
case of Habergham v. Vincent, (a) It might as well have been 
contended in that instance that there was an adoption into the 
will of that future instrument. But the opinion of the Lord 
Chancellor and the Judges was, that it was not competent to a 
man to give himself such a power ; viz., a power to dispose ot 
land by an unattested instrument. That is the reservation this 
testator attempts to make ; for unless he thinks fit, when he makes 
his codicil, to declare his intention that his land shall be charged 
with the legacy or annuity, it shall not be charged. Then it is 
through the medium of an unattested instrument that it is to be 
a charge upon land ; and that cannot be, within that case." 

(a) Ante, s. 54. Bonner v. Bonner, 13 Ves. 379. Hooper v. Goodwin, 18 Ves. 166. 

7* 



78 Title XXXVIII. Devise. Ch. V. s. 61—67. 

61. Although a trust estate is now what a use was before the 
statute 27 Hen. VIII. yet it is settled that it can only be devised 
by a will executed according to the Statute of Frauds. 

62. Lands were conveyed to trustees and their heirs, to the 
use of them and their heirs, in trust, after raising certain sums of 
money, to convey the premises to J. S. and his heirs. J. S. by 
a will, attested by two witnesses only, devised his trust estate to 
J. N. (a) 

Lord Macclesfield said, there could be no question but that a 
trust of an inheritance could not be devised, otherwise than by a 
will duly attested by three witnesses, in the same manner as a 
legal estate ; for if the law were otherwise, it would introduce 
the same inconveniencies as to frauds and perjuries, as. were oc- 
casioned, before the statute, by a devise of a legal estate. 

63. Ah estate in mortgage, though only held as a pledge for 
securing the repayment of money borrowed, can only be devised 
by a will executed according to the Statute of Frauds. The same 
rule applies to an equity of redemption, which is considered as 
real property, and similar to a trust estate, (b) 

64. Some modern writers have asserted^ that where a mort- 
gagee disposes of money due to him on a mortgage, by an unat- 
tested will, the legal estate in the lands, comprised in 

68 * the * mortgage, will pass. I can find no authority for this 

position; and I apprehend that nothing more than the 
money would pass, with a right in equity to call on the heir of 

the mortgagee for a conveyance of the land, (c) 
■69 * * 65. As terms for years already created were disposable 

by testament before the statutes of Wills, they are not com- 
70 * prehended * within the Statute of Frauds, and may therefore 

be disposed of by any kind of will or testamentary disposi- 
tion ; but it has been already observed, that a term for years in 
lands cannot be created by a will, which is not executed accord- 
ing to the Statute of Frauds. 

66. AH wills relating to terms for years must be proved in the 
ecclesiastical courts, having jurisdiction over the place where the 
lands lie ; for otherwise they will have no effect as to the terms. 

67. If, however, a term of years becomes attendant on the in- 

(a) Wagstaff «. Wagstaff, 2 P. Wms. 258. 3 Atk. 151. 
(i) Tit. 15, ». 2. (c) Hem. 



Title XXXVIII. Devise. Ch. V. s. 67—69. 79 

heritance, it is then considered as part of the inheritance, -not a 
chattel real, and can only be disposed of by such a will as would 
pass the inheritance, (a) 

68. Thus, where Edward Whitchurch, having purchased a 
term in the name of a trustee, and the inheritance in his own 
name, by a will not executed according to the Statute of Frauds, 
devised the premises to the son of a younger brother ; the heir 
at law of the testator brought her bill in chancery, in order to 
compel the executor and devisee to assign over the term to her. 
It was objected for the defendants, that the executor had assented 
to the devise ; and that the will, though not attested by three 
witnesses, was good at law to pass the term. But decreed, that 
as this was a term which would have attended the inheritance 
and in equity have gone to the heir, and not to the executor, in 
which respect it was to be considered as part of the inheritance, 
so the will, which was not attested by three witnesses, as the 
law required it to be when land was to pass, should not carry 
this term. Though it was true, such a will as in the present 
case would be sufficient to pass a term in gross, yet should it not 
pass the trust of a term attendant on the inheritance, nor conse- 
quently the term itself, (b) 

69. A will made in a foreign country, of lands situate in Eng- 
land, must be executed in the same manner, and attested by the 
same number of witnesses as a devise of lands made in Eng- 
land, (c) ' 

(o) Tit. 12, c. 3. s. 29. 

(S) Whitchurch v. Whitchurch, 2 P. Wms. 236. 2 Atk. 72. 

(c) Coppin v. Coppin, 2 P. Wms. 293. (2 Greenl. Evid. § 670. Countess de Zichy Fer- 
raris v. Marq. of Hertford, 3 Curt. 468. Ld. Nelson v. Ld. Bridport, 8 Bear. 547. 10 Jur, 
1043. Croker v. Marq. of Hertford, 4 E. F. Moo. 339.) 



1 This rule, that a devise of lands, to be valid, must be made according to the lex rei 
sites, is enacted in Maine, New Hampshire, Delaware, Rhode Island, Indiana, and Mis- 
souri. In several other States, a contrary rule is adopted, by which lands in those 
States may pass by a will, made in a foreign State, in the form required by the law of 
the place where it was made. But to have this effect, the foreign will must have been 
first proved abroad, and then be admitted, by a certified copy, to be filed and registered 
in the State where the lands lie. Such is the rule, as expressly enacted, in Massachu- 
setts, Vermont, Florida, Michigan, Illinois, Louisiana, and Arkansas. Whether such is 
the legitimate effect of the rule adopted in other States, as in Virginia, Ohio, New Jersey, 
Kentucky, Tennessee, Mississippi and Alabama, where a copy of the foreign will being 
duly proved abroad, may be allowed by the Court of Probate, and admitted to be 



80 Title XXXVIII. Devise. Ch. V. s. 70. 

70. It has been a common practice, for a long time, where a 
title depends upon a will, to prove the execution of it per testes in 
chancery. But Lord King has said, that this is not absolutely 
necessary, to make out the title, any more than it would be to 
proTe the execution of a deed in equity, by which the estate was 

settled from the heir at law, after the ancestor's death. 
71 * The will * prevents and breaks the descent to the heir, as 

much as a deed ; and the hands of the witnesses to the 
will may be as well proved as those to a deed. Now, as it 
would be no objection to a title, if a modern deed, on which the 
title depended, was not proved in equity ; why should it be so in 
the case of a will, where the same appears to be duly attested 
by three witnesses, whose names are mentioned to have been 
subscribed in the presence of the testator 1 (a) 

(a) Colton n. Wilson, 3 P. Wms. 192. Sug. V. & P. 369, Ed. 9. Fearne's Opin. 234. 



recorded, quaire. See Dublin v. Chadbourn, 16 Mass. 433 ; Bailey v. Bailey, 8 Ohio, 
239 ; Mease v. Keefe, 10 Ohio, 362 j 1 Jarm. on Wills, p. 1 , 2, note by Perkins ; Maine Rev, 
St. 1840, ch. 107, § 20 ; Mass. Stat. 1843, ch. 92 ; [Bayley v. Bailey, 5 Cush. 245 ; J N. 
Hamp. Rev. St. 1842, ch. 157, § 13 ; R. Isl. Rev. St. 1844, p. 237 ; Verm. Rev. St. 1839, 
ch. 45, § 24 ; Del. Rev. St. 1829, p. 557 ; Ind. Rev. St. 1843, ch. 30, $ 51 ; Misso. Rev. St 
1845, ch. 185, § 35 ; Flor. Thomps. Dig. p. 194 ; Mich. Rev. St. 1846, ch. 68, $ 21-24 
Illinois Rev. St. 1839, p. 688 ; Louis. Civ. Code, art. 1589 ; Ark. Rev. St. 1837, ch. 157 
§ 36 ; Tate's Dig. p. 900 ; Ohio Rev. St. 1841, ch. 129, § 29-33 ; N. Jersey Rev. Sj. 1846, 
tit. 10, ch. 9, § 2 ; Ky. Rev. St. 1834, Vol. II. p. 1548; Ten. Rev. St. 1836, p. 593 
Missi. Rev. St. 1840, ch. 36, § 13, 14; Ala. Toulm. Dig. p. 885. [For the rule in North 
Carolina, see Drake v. Merrill, 2 Jones's Law R. 368.] 



81 



CHAP. VI. 



REVOCATION OF DEVISES. 



Sect. 1. All Devises revocable. Sect. 57. A Woman's Will revoked by 

Marriage. 

Alteration of the Estate. 
. Alienation to a Stranger. 

Contract for Sale. 
, An intended Alienation. 
, Alienation to the Use of the 
Testator. 

Alienation to strengthen the 
Devise. 
, Fine and Recovery. 

Any Conveyance inconsistent 
with the Devise. 

Exchange. 

Parol Evidence not admis- 
sible. 

A Fraudulent Conveyance 
not a Revocation. 

Nor an Alteration of the 
Quality of the Estate. 

Nor the Change of a Trus- 
tee. 

Nor a Partition. 

Unless it extends to other 
Things. 
. Revocation of Devise of Lands 
contracted for, by subse- 
quent Conveyance to Uses 
to prevent Dower. 

Partial Revocations. 

Bankruptcy. 

Revocations of Leaseholds. 

Section 1. Although a devise of lands differs in many 
respects from a testament or will of personal estate ; yet there 
are some circumstances common to both, one of which 
is, that a devise is revocable * at any time during the * 73 
life of the devisor ; so that although a person should 



1. 


All Devises revocable. 


Sect. 57. 


2. 


Express Revocations. 




4. 


I. A subsequent Will revok- 


58. 




ing or inconsistent with a 


59. 




former one. 


62. 


8. 


Otherwise both Wills are 


69. 




good. 


71. 


15. 


Two inconsistent Wills of the 


> 




same Date are both void. 


75. 


16. 


A second unattested Will re- 






vokes Legacies. 


78. 


18. 


II. A Codicil. 


85. 


19. 


III. A written Declaration. 




25. 


Unless it merely expresses in- 


88. 




tention to revoke by future 


89. 




Act. 




26. 


Or the Revocation proceeds 
on Mistake. 


'92. 


27. 


Or Deception. 


94. 


29. 


IV. Cancelling. 




32. 


By the Testator, or by his 
Direction. 


100. 


34. 


Any Act done with intention 


103. 




to cancel is sufficient. 


106. 


38. 


An Obliteration of Part does 






not revoke the Whole. 


108. 


43. 


Cancelling one Part revokes 
the other. 




44. 


Implied Revocations. 




45. 


Marriage, and Birth of a 


• 110. 




Child. 


117. 
119. 



82 Title XXXVIII. Devise. Ch. VI. s. 1— 5. 

declare his will to be irrevocable, in the strongest terms, yet he 
may revoke it ; because his own acts or words cannot alter the 
disposition of the law, so as to make that irrevocable which, in 
its own nature, is revocable, (a) 

£. Devises of lands made under the particular customs of 
boroughs, or by virtue of the statutes of Wills, might have been 
revoked by words only, withbut writing ; the statutes of "Wills 
giving power to any person, seised in fee of lands, to devise them 
by writing ; but being silent as to revocations. This was rem- 
edied by the sixth section of the Statute of Frauds, (b) by 
which it was enacted — " That no devise in writing of any lands, 
tenements, or hereditaments, or any clause thereof, shall be revo- 
cable, otherwise than by some other will or codicil in writing, or 
other writing declaring the same; or by burning, cancelling, 
tearing, or obliterating the same, by the testator himself, or in 
his presence, or by his directions and consent. But all devises 
and bequests of lands and tenements shall remain and continue 
in force, until the same be burnt, cancelled, torn, or obliterated 
by the testator, or by his directions, in manner aforesaid ; or un- 
less the same be altered by some other will or codicil, in writing, 
or other writing of the devisor, signed in the presence of three or 
four witnesses, declaring the same." 1 

3. Under this statute, there are four express modes of revoking 
a will. I. By a subsequent will. II. By a codicil, both of which 
must be duly attested according to the statute. III. By an ex- 
press declaration in writing, that tjie testator means to revoke 
his will. IV. By burning, cancelling, tearing, or obliterating 
the will. 

4. A subsequent will operates as a revocation of a former one, 
in all cases where it contains an express clause revoking all 
former wills ; or where it makes a different and incompatible dis- 
position of the lands devised by the former one. 

5. The intention of a testator to revoke his will is the circum- 
stance which constitutes the revocation ; and when that appears 

(a) Bacon's Max. 19. 8 Eep. 82, a.' (6) 29 Car. 2, c. 3. 



1 This section of the Statute of Frauds has been substantially enacted in all the 
United States ; except as to the mode of executing the written instrument of revoca- 
tion. See infra, § 19, note. 



Title XXXVIII Devise. Ch. VI. 5. 5—8. 83 

in a subsequent will,, it is sufficient, though such subsequent will 
should not take effect, from any disability in the devisee, (a) 1 

6. Thus where a person devised lands to A B, and afterwards 
devised the same lands to the poor of the parish of C, which was 
void, they not having the capacity to take ; yet it was held 

to * be a revocation. So a devise to a corporation, though *74 
void, 2 was held to be a revocation of a former devise, (b) 

7. In a subsequent case it was held, that a devise to a Roman 
Catholic, who was at that time incapable of taking by devise, 
should, notwithstanding, operate as a revocation of a former 
will, (c) 

8. By the Roman law, a subseq#nt will operated, in all cases, 
as a revocation of a former one. Posteriori quoque lestamento, 
quod jure perfectum est, superius rumpitur. The reason of this 
rule was, because the essence of a Roman testament consisted in 
the institution of an heir, who took the whole property of the 
testator ; so that two wills could never subsist at the same time, 
as there could not be two distinct owners of the same. Quicun- 
que testamentum facit, censetw de omnibus bonis disponere, ut non 
magis duo testamenta simul consistere possint, quant duo domini 
ejusdem rei in solidum constitui. But although the law of Eng- 

(o) (Laughton v. Atkins, 1 Pick. 535, 543.) (J) 1 Roll. Ab. 614. 

(c) Roper v. Eadcliff, 10 Mod. 233. 



1 It requires the same capacity to revoke, as to make a will. If therefore, the act of 
revocation be done when the testator was non compos, or insane, it is a nullity, and the 
will may still be set up, as if the act had not been done, or were a merely accidental 
spoliation or destruction. Allison v. Allison, 7 Dana, 94 ; Ford v. Ford, 7 Humph. 92 ; 
O'JSTeall v. Parr, 1 Richard, 80; [Smith v. Wait, 4 Barb. Sup. Ct. 28; Rhodes v. Vin- 
son,^ Gill, 169 ; Plenty v. West, 15 Eng. Law & Eq. 234. A became of unsound mind, 
anoaHiile in that state destroyed his will. He recovered, and gave dheetions for the 
preparation of another will, to the same effect as the will destroyed, but before this 
was prepared destroyed himself. Probate was granted of the unexecuted draft of the 
original will. In re Downer, 26 lb. 600. 

If a second will is made, containing an express clause of revocation of former wills, 
but does not take effect, by reason of some imperfection in its structure, or want of due 
execution, it cannot avail as a revocation of the former will ; for it is not certain that 
the testator intended to revoke the first will, except by substituting the second. The 
subsequent will, in order to have that effect, must first be admitted to probate. Laugh- 
ton v. Atkins, 1 Pick. 535, 543. See also Pringle v. McPherson, 2 Brev. 279 ; Short v. 
Smith, 4 East, 419. [See also Cutto U.Gilbert, 29 Eng. Law & Eq. 64. | 

a Such devise is not universally void. See ante, tit. 1, § 40, note; Supra, ch. 2, § 20, 
note. 



84 Title XXXVIII. Devise. Ch. VI. s. 8—11. 

land has adopted the principles of the Roman law, respecting 
wills of personal property, yet Lord Mansfield has said, that a 
devise of lands is looked upon in a very different light, being 
considered as an appointment of lands to a particular person ; 
from which it followed, that a person might as well dispose of 
part of his lands by will, as of the whole, (a) 
*9. In consequence of this principle, it has been determined, 
that where a second will has not a clause of revocation of all 
former wills, and does not make any disposition inconsistent with 
a former will, it does not operate as a revocation of such former 
will, but both remain in force, (b) 1 

10. A person devised landlfcto his youngest son and his heirs. 
He afterwards married, and by another will in writing, devised 
the same lands to his wife for life, paying yearly to his youngest 
son and his heirs a certain rent. Anderson and Glanville held it 
to be no revocation, but that both wills might stand together, 
the latter not being contrary to the former ; and there being no 
express revocation ; the intention of the testator being only to 
provide for his wife, and not to alter the devise to his son ; for 
the giving him a rent, showed he intended that he should take 
the reversion, (c) 

11. Where a jury found that a testator had made a second 
will, the contents of which were unknown ; such second will was 

held not to operate as a revocation of the first ; because it 
75 * did * not appear, either that it contained a clause revoking 

(a) Just. Inst. lib. 2. Tit. 17, 8. 2. Vinius Comment. Cowp. E. 90. 
(6) (Brant v. Willson, 8 Cowen, 56. Hearle v. Hicks, 1 CI. & Fin. 20. Henfrey v. Hen- 
frey, 4 Moore, P. C. Eep. 29.) (c) Coward v. Marshal, Cro. Eliz. 721. 

__ 

1 Where a testator left three testamentary papers, the first of which disposed of all 
his property; the second disposed of part only, but began with the words, — "This is 
my last will and testament ; " and the third, which was written oil the same sheet with 
the second, appointed executors "of this my will ; " — it was held, that though there were 
no express words of revocation, and the deceased had disposed of part only of his prop- 
erty, yet the first will was revoked ; such being the manifest intention of the testator. 
Plenty v. West, 9 Jur. 458. [See also Nelson v. McGiffert, 3 Barb. Ch. E. 158. For 
cases in which subsequent testamentary papers were held not to amount to a revocation 
of former ones, see Freeman v. Freeman, 27 Eng. Law & Eq. 351 ; Richards v. The 
Queen's Proctor, 28 lb. 610.] 

The republication of a former inconsistent will, is also a revocation of a subsequent 
will. Havard v. Davis, 2 Binn. 406. 



Title XXXVIII. Devise. Ch. VI. *. 11—14. 85 

the first will, or that it made a different disposition of the same 
lands. 1 

12. In ejectment, the jury found a special verdict, that Sir H. 
Killigrew, being seised in fee, made his will in writing, and after- 
wards made another will in writing ; but as to the contents there- 
of, they were entirely ignorant ; and the Court of King's Bench 
was of opinion, that the second will was not a revocation of the 
first, (a) 

Upon a writ of error in the House of Lords, it was argued for 
the plaintiff, that the second will could not be considered as a 
duplicate of the first, but must be deemed a revocation of it ; 
that no will was good but the last ; that every will was revoca- 
ble until death ; that the making another will imported a revo- 
cation of all former ones, even though it was not so expressly 
declared. On behalf of the defendant it was contended, that 
every latter will was not a revocation ; for a man might dispose 
of one part of his estate by one will, and of another part by 
another will. So, if a man purchased lands after he had made 
his will, he might make another will of them. Therefore the 
second will, in this case, might relate to other lands, and be no 
revocation. The judgment was affirmed, (b) 

13. In a modern case, this doctrine was carried still further : 
for where a jury found that a testator had made a second will,' 
different from the first, but without finding in what that difference 
consisted, the House of Lords determined, that such second will 
did not revoke the former one. 

14. Upon a special verdict, it appeared that John Lacey, being 
seised in fee of a set of chambers in Lincoln's Inn, made a will 
in the year 1748, by which he devised all his real and personal 
estate to Frances Harwood. That in the year 1756, he made 

(o) Seymor v. Northwortly, Hard. 374. Hitohins v. Bassett, 3 Mod. 203. Salic. 592. 
(i) Show. Pari. Ca. 146. 

i This rule is applied, even though it is found that the second will was stolen from 
the testator. Hylton v. Hylton, 1 Gratt. 161. Or, was destroyed or suppressed by 
fraud. Jones v. Murphy, 8 W. & S. 275. But where the second will is lost or other- 
wise missing, parol evidence may be offered, to prove its contents. Legare v. Ashe, 
1 Bay, 464 ; 1 Greenl. on Evid. § 84, 509, 560 ; Havard v. Davis, 2 Binn. 406. [And 
where there is a subsequent will, the party offering it has the burden of showing that it 
expressly revokes the former will and has different contents, and the mere words " this 
is the last will, &c," are not sufficient for that purpose. Cutto v. Gilbert, 29 Eng. Law 
& Eq. 64.] 

VOL. III. 8 



86 Title XXXVIII. Devise. Ch. VI. s. 14. 

another will, different from the former one, but in what particu- 
lars were unknown to them. They did not find that the. testator 
cancelled his second will, or that the defendant had destroyed 
the same ; but of what was become of the said will, the jurors 
were altogether ignorant. The question was, whether the devise 
in the will of 1748, to Frances Harwood, was revoked by the 
will found to have been executed in 1756. (a) 

'Judgment was given in the Court of Common Pleas, 
*76 that the "will of 1748 was revoked. Upon a writ of 
error in the Court of King's Bench, that judgment wag 
reversed, (p) 

A writ of error was brought in the House of Lords, where it 
was contended, on behalf of the plaintiff, that the title of the 
heir at law, being a clear substantive title, ought not to be de- 
feated, but by a title equally clear and unexceptionable ; that 
the title of a devisee must be founded on that which is clearly 
known to be the ultimate intention of the testator ; and it was 
not sufficient that the testator did, at one time of his life, mean 
to give his estate to the devisee, unless he continued in that in- 
tention to the time of his death. The jury had found that the 
testator had made a second will, executed according to law ; and 
that the disposition made by the testator in his second will, was 
different from the disposition in his first will ; and though the 
jury said they were unable to ascertain the particulars, yet the 
finding necessarily imported that they had received sufficient 
Satisfaction, as to the general contents, to enable them upon • 
their oaths to find that, from whence the courts must see, that 
the testator's intention was generally changed ; and consequently 
that the first will was revoked. That the jury having found that 
Mr. Lacey did, in 1756, duly execute another will, the same 
must be taken to subsist at the time of his death, unless a sub- 
sequent change of intention appeared ; but the jury had excluded 
the idea of any such change, by declaring that they did not find 
that the testator had cancelled the second will ; and as the jury 
had not found it cancelled, the Court could not say it was so. 
By establishing then the first will, which the testator did not 
mean to die with, it would necessarily follow that the whole of 
the testator's large fortune would go from his family, to a person 

(a) Goodright v. Harwood, 3 Wils. R. 497. 2 Black. E. 937. Cowp. £7. 
(J) 7 Bro. Pari. Ca. 489. 



Title XXXVIII. Devise. Ch. VI. s. 14. 87 

for whom, from the year 1756, he never intended it. Wills dis- 
inheriting natural heirs, in favor of persons who are strangers in 
blood, ought not to receive more countenance than the necessity 
of the occasion requires ; and whenever there is evidence of a 
change of intention in the testator, such wills can never be es- 
tablished to the prejudice of an heir at law. That, it being at 
least rendered doubtful, by the execution of the second will, 
whether Mrs. Harwood was entitled to any thing, or if she was, 
what she was entitled to ; it became necessary for her, as claim- 
ing under a derivative, and not under an original title, to produce 
the second will, and show her interest under it. That if 
ever it * should be understood as established in law, that * 77 
from the bare non-production of a latter will, to whatever 
cause it might be owing, a former will must at all events be es- 
tablished ; it would be an opening to frauds of the most danger- 
ous kind, and be the strongest temptation to devisees in a former 
will, to exert every artifice to get possession of and suppress the 
latter instrument, in order to set up the former revoked will. 

On the other side it was said, that with regard to the doctrine 
of revocations, the determination of the House of Lords, in the 
case of Hitchins v. Basset, (a) had settled this point of law, viz. 
that a subsequent independent will of lands is not in its own na- 
ture a revocation of a former will, nor will operate as such, unless 
it contains words expressly revoking the former ; or makes a 
different ^md incompatible disposition of the same lands. In the 
present case, the last will was not to be found ; its contents were 
not known ; therefore, no express revocation of the former will 
appeared in it, nor could it be shown that it contained any dif- 
ferent or incompatible disposition of the chambers in question. 
That although it was found by the verdict that the disposition, 
made by the latter will, was different from that made by the 
former, yet it was at the same time found to be unknown in what 
particular that difference consisted ; whether it related to lands, 
or to personal estate only ; to the appointment of an executor, or 
to the quantum of a legacy. ' The most trivial alteration in the 
most inconsiderable legacy might have occasioned that difference ; 
but there was nothing to prove that it extended to those particular 
chambers, which were the subject of the question.. The mere 

(o) Ante, § 12. 



88 Title XXXVIII. Devise. Ch. VI. s. 14. 

existence of a subsequent will, was not of itself a revocation, 
nor was any new disposition contained therein a revocation of the 
former devise of the chambers in question, unless that new dis- 
position affected those very chambers ; and therefore, until it 
could be shown that the different disposition, found by the ver- 
dict, extended to those chambers, or that there were express 
words of revocation of the former will contained in the latter, 
the devise under which the defendant claimed stood unrevoked 
by any thing which could be shown. 

It was objected, that the claim of a devisee must be founded 
on the last will of a testator ; and that in this case, there being 
found to be a will, executed subsequent to that in 1748, that in 
1748 was not the last will of the testator, and consequently 
78* none * could claim any lands under it. But to this it 
was answered, that the proposition that the claim of the 
devisee must be founded on the last will of the testator, was fal- 
lacious ; unless its import was very strictly attended to. It was 
true the will under which a devisee claims must be the last will, 
in respect to the very lands which were the subject of such claim ; 
but if there were ten subsequent wills, which contained no ex- 
press revocation of the former will, that former will, quoad the 
subject of such devise, would be the last will of the testator. 

It was, lastly, observed, that should a will which could not be 
produced, and the contents or effects whereof were entirely un- 
known, be construed as a revocation of a known subsisting Will ; 
such a construction would, in effect, not only overturn the Stat- 
ute of Frauds, in respect to one of the most material and dan- 
gerous species of fraud intended to be provided against by that 
statute, but would at the same time be striking a most fatal blow 
at the very root of all testamentary power over lands ; for of 
what use to a man would the power of making a will be, if he 
could not make that will secure ? But it was impossible that any 
will, however deliberately made, and solemnly executed, could 
be in any degree secure, if it could be set aside by means so very 
practicable, as only swearing to the execution of an unexisting 
will. 

After hearing counsel on this writ of error, the following ques- 
tion was put to the Judges : — " Whether on the facts found by 
the special verdict in this cause, the devise of the chambers in 



Title XXXVIII. Devise. Ch. VI. s. 14—17. 89 

Lincoln's Inn to Frances Harwood, the defendant in error, by the 
will of the 16th April, 1748,- be revoked or not ? " Whereupon 
the Lord Ch. B. delivered the unanimous opinion of the Judges, 
that the said devise was not revoked. It was therefore ordered 
and adjudged, that the judgment given in the Court of King's 
Bench, reversing the judgment given in the Court of Common 
Pleas, should be affirmed. 

15. It has been held, by all the Judges in the House of Lords, 
that two inconsistent wills, of the same date, neither of which 
could be proved to be last executed, were by the common law of 
England void for uncertainty, so far as they were inconsistent ; 
and would let in the heir, if no act of the testator, subsequent to 
the publication of the wills, explained them ; so as to reconcile 
what otherwise would appear inconsistent, (a) 

* 16. It has been already stated, that where a will, duly * 79 
attested, charges the real estate of the testator with the 
payment of debts and legacies, a subsequent unattested will or 
codicil, giving legacies, will be sufficient to pass such legacies. 
It has been determined upon the same principle, that in a case of 
this kind, a second unattested will or codicil shall be sufficient to 
revoke legacies given by the first will, (b) 

17. Thus, in a case which has been already stated, one of the 
questions was, whether the charge, laid on the land by the first 
will, and the legacies thereby given, were revoked by the second 
will, (c) 

Lord Hardwicke. — "By the Statute of Frauds, no land can 
pass by will, unless the will be executed according to the provis- 
ions of that statute. The same of money charged originally 
upon land ; because it is considered in this Court as part of the 
land, and can only be raised by sale or disposition of the land. 
It is like a devise of the profits of land, which is a devise of the 
land itself ; and if so, the rule of revocation must be the same, 
in case of such charges, as in revocations of lands themselves, 
devised by will. But still there are several revocations not 
within the statute ; virtual revocations, as by parting with or 
extinguishing the thing given by the will ; and wherever that is 
done by the testator, the devise falls to the ground. These are 

(a) Phipps «. Anglesea, 7 Bro. Pari. Ca. 443. (6) Ante, c. 6, 8. 66. 

(c) Brudenell v. Boughton, ante, c. 6, s. 57. MS. Rep. 



90 Title XXXVIII. Devise. CK. VI. s. 17—18. 

out of the statute, and remain as they were at law. Selling the 
land by the testator, is a revocation*; or making any other con- 
veyance, inconsistent with the disposition made by the will. 
Suppose the testator charges his land with a debt, or with a por- 
tion of £200 for his daughter, who marries in his lifetime, and 
he gives her the £200 upon her marriage ; this is a revocation of 
the charge, though not by such instrument, executed according 
to the form prescribed by the statute. In our case, the words of 
the will do indeed create a charge upon the land ; but that is 
only upon failure of the personal estate ; for the legacies were 
originally charged upon that, and the land is but a security; 
and whatever takes away the thing secured, must necessarily free 
the security. It was insisted, indeed, that the real estate was 
charged originally by the testator with the payment of his debts 
and legacies ; but plainly it is not, and was designed only for a 
subsidiary fund to the personal estate ; so that if the legacies be 

revoked, the land is discharged. And the case of Hyde 
80 * v. Hyde (a) * is an authority in point, that where there 

are two wills, though the latter be not a sufficient revo- 
cation of the first, as to the lands within the Statute of Frauds, 
yet the legacies in the former, which are revoked by the latter, 
are extinct ; and consequently the charge upon the land likewise. 
And I should have been of this opinion, even if the case of Hyde 
v. Hyde had never happened." 

18. II. The second mode of revoking a will is by a codicil, duly 
executed according to the Statute of Frauds, which has the same 
effect, in revoking a devise, as a subsequent will, where it con- 
tains express words of revocation, or makes a different disposition 
from that contained in the will. And it has been stated, that a 
codicil, though not executed according to the Statute of Frauds, 
may operate as a revocation of legacies, (b) 1 

(a) Infra, s. 30. 

(b) Att^Gen. v. Lloyd, 3 Atk, 552, S. C. 1 Vez. 32. Lushington v. Boldero, Coop. 0. C. 
216. Ante, s. 16. 

' See, on this subject, 1 Jarm. on Wills, ch. 7, sec. 5, 2d Am. ed. and the notes of 
Mr. Perkins. [Bosley v. Bosley, 14 How. TJ. S.390; Snowhill v. Snowhill, 3 Zabr. 
447 ; Boyle v. Parker, 3 Md. Ch. Decis. 42; Boyd v. Latham, Busbee, Law, (N. C.) 
365 ; Collier v. Collier, 3 Ohio, (N. S.) 369; Williams v. Evans, 18 Eng. Law & Eq. 
329 ; Lainson v. Lainson, 23 lb. 72 ; Wells v. Wells, 23 lb. 4 ; Cleoburey v. Beckett, 
11 lb. 329 ; In re Hough's Estate, 6 lb. 61.] 



Title XXXVIII. Devise. Ch. VI. s. 19. 91 

19. III. The third mode of revoking a will is by a writing, de- 
claring an intention of revoking such will, signed in the presence 
of three witnesses. And it is observable, that the Statute of 
Frauds, (s. 5,) requires that, in devises of lands, the three wit- 
nesses should subscribe the will in the presence of the testator. 
But the clause relating to revocations, (s. 6,) only requires that 
the devisor should sign in the presence of three witnesses, with- 
out requiring that the witnesses should subscribe in the testator's 
presence. Upon the construction of this clause, it has been 
held, that although a will may be revoked by a written declara- 
tion, without being attested by three witnesses subscribing the 
will in the testator's presence ; yet that a second will, though 
containing a clause revoking all former wills, shall not operate as 
a revocation of the first will, unless it is executed in such a man- 
ner as to operate as a devise. 1 



Though ihe codicil to some extent goes to annul the will, yet if it be executed sim- 
ultaneously ■with the will, and be the voluntary act of a capable testator, it will not 
operate as a revocation of the will. Biddies v. Biddies, 3 Curt. 458. 

A» codicil, not expressly revoking a former will of real estate, though professing an 
intention to dispose of the whole estate in a different manner from the will, yet not 
doing so in fact, is only a revocation pro lanlo. Brant v. Wilson, 8 Cowen, 56. If the 
codicil be set aside with the will to which it was attached, on the ground of undue in- 
fluence, it is no revocation of a will made previous to either of them. O'Neal v. Earr, 
I Richards. 80. The rule, in regard to revocation by a subsequent testamentai-y act, 
is the same, whether it be a will or a codicil, with the general rule of the Roman law, 
requiring that the revoking instrument be valid in law. Tunc autem prius testamentum 
rumpitur, cum posterius rite perfectum est. Dig. lib. 28, tit. 3, 1. 2. So, in regard to 
the partial alteration of a will, where the act intended to be done by the testator is a 
complete act, namely, to undo a previous gift, for the purpose of making another gift 
in its place ; if the latter branch of his intention cannot be effected, the doctrine is, 
that there is no sufficient reason to be satisfied that he meant to vary the former gift at 
all. Locke v. James, 11 M. & W. 901. And sec Limbery v. Mason, 2 Com. 451, 453, 
and note by Mr. Rose. [An informal addition to a will, after its execution, will not 
operate as a statutory revocation, where the new matter bears neither upon the contents 
of the will, nor upon its interpretation. Wickoff's Appeal, 15 Penn. State R. (3 Harris,) 
281. See the same case as to the implied revocation of a codicil, where it is not 
mentioned in a clause of republication, in which prior and subsequent codicils are 
specified.] 

If the codicil be merely for the purpose of substituting a new devisee, in the place 
of another recited to have died ; this is only a conditional revocation, dependent on 
the truth of the supposition that the other is dead. If that is false, the codicil is void, 
and the will stands. Doe v. Evans, 10 Ad. & El. 228. 

1 Upon this section of the Statute of .Frauds, Mr. Jarman makes the following ob- 
servations : — " Though the Statute of Erauds require that a will which revoked a 



92 Title XXXVIII. Devise. Ch. VI. s. 20. 

20. J. S., by a will executed according to the statute, devised 
the lands in question to A. Afterwards, the testator published 



devise of freehold lands, should be attested by the same number of witnesses as a, 
will devising such lands, yet, in some particulars, the prescribed ceremonial differed 
in the respective instances. Thus, a devising will was required to be subscribed by 
the witnesses in the testator's presence, which a revoking will was not, and a revoking 
will was required to be signed by the testator in the presence of the witnesses, while a 
devising will needed not to be signed in their presence ; each, therefore, had a circum- 
stance not common to both. This difference, however, (which probably occurred with- 
out design,) has been attended with little practical effect ; for it seldom happens that 
a testamentary instrument is executed for the mere purpose of revoking a previous 
will ; and if it contain a new disposition, any revoking clause therein will be a nullity, 
whether the substituted devise takes effect or not, though for widely different reasons 
in the respective cases. If the devise with which the clause in question is associated be 
effective, it reduces the latter to silence by rendering it unnecessary, the new devise 
itself producing the revocation, so that the efficacy of the will as a revoking instrument 
cannot, in such a case, become a subject of consideration. If, on the other hand, the 
new devise be ineffectual, on account of the attestation being insufficient for a devising, 
though sufficient for a revoking will, the revoking clause becomes inoperative on 
another principle, namely, that the revocation is conditional and dependent on the 
efficacy of the attempted new disposition, and that failing, the revocation also fails ; 
the purpose to revoke being considered to be, not a distinct independent intention, but 
subservient to the purpose of making a new disposition of the property ; the testator 
meaning to do the one so far only as he succeeds in effecting the same ; (Barksdale v. 
Barksdale, 12 Leigh, 535 : Eggleston v. Speke, Carth. 79, 1 Show. 89 ; Onions v. 
Tyrer, 2 Vern. 441 ; S. C. 1 P. W. 343. See also Ex parte Earl of Ilchester, 7 Ves. 
348 ; Kirke v. Kirke, 3 Russ. 435. But see Richardson v. Barry, 3 Hagg. 249 ) ; and 
it cannot be known that the testator intended to revoke his will, except for the purpose 
of substituting the other. But if the second devise fails, not from the infirmity of the 
instrument, but from the incapacity of the devisee to take under it, the prior devise is 
revoked. Laughton v. Atkins, 1 Pick. 535, 543 ; French's case, 1 Roll. Ab. 614 (o,) 
pi. 5 ; Roper o. Constable, 2 Eq. Ca. Ab. 359, pi. 9 ; S. C. nom. Roper v. Radcliffe, 5 
Bro. P. C. (Toml. ed.) 360. See Pringle v. MTherson, 2 Brevard, 279; Greer v. 
McCrackin, Peck, 301 ; Howard v. Holloway, 7 John. 394 ; Brooke v. Kent, 3 Moore,, 
Priv. Coun. 334 ; " 1 Jarm. on Wills, [153]-[154] 2d ed. by Perkins. See also Reid v. 
Borland, 14 Mass. 208. 

These observations, however, can have but a limited application in the United States. 
In all the States, composing the American Union in 1845, except Rhode Island, New 
Jersey, Maryland, Tennessee, Florida, and Arkansas, no will can be revoked by another 
writing, unless the instrument of revocation is executed with the same formalities as 
are required for the valid execution of a will. In Rhode Island, New Jersey, and Mary- 
land, the language of the statutes on this subject is the same as in the Statute of 
Frauds, 29 Car. 2, c. 3, § 6. See R. Isl. Rev. St. 1844, p. 231 ; N. Jer. Rev. St. 1846, 
p. 363 ; LL. Maryl. Vol. I. p. 371, Dorsey's ed. In Arkansas it is merely enacted, that 
" no will in writing shall be revoked by any subsequent will, codicil, or declaration, 
unless the same be in writing." Toulm. Dig. p. 884. In Tennessee, it is enacted, that 
" no written will shall be altered or revoked by a subsequent nuncupative will, except 
the same be in the lifetime of the testator reduced to writing, and read over to him and 



Title XXXVIII. Devise. Ch. VI. s. 20—21. 93 

another writing as his. last will, in the presence of three wit- 
nesses, revoking all former wills ; but the witnesses to the second 
will did not subscribe their names in the presence of the testa- 
tor. The second will, not being valid as a devise of lands, the 
question was whether it was good as a writing, within the Stat- 
ute of Frauds, to revoke the first will. And the Court resolved 
that it was not. (a) 

21. A person, by a will duly attested, devised lands to trustees, 
to several uses. He afterwards made another will of the 
same * lands, devising them to other trustees, but to the * 81 
same uses ; and there was a clause in this last will, revok- 
ing all former wills ; but although it was subscribed by the testa- 
tor, and attested by three witnesses, yet the witnesses did not sub- 
scribe their names in the presence of the testator ; upon which 
the testator's heir claimed the lands. And the question was, 
whether the last will, being void as a devise of the lands, should 
yet be a good revocation of the former will, (b) 

Lord Cowper declared, that if the testator had by his second 
will barely revoked the first, without declaring by the same act 
his intention to dispose of his lands to the same purposes to 
which they were devised by the former will, the second will had 
been a good revocation of the former, as to the lands devised ; 
but here was a disposition of the same lands, in the second will, 
to the same purposes as in the first will ; which showed he did 
not mean to revoke his first will, as to the devise of those lands, 
unless he might by the second will (at the same time that he 
revoked the former) set up the like devise, so as to take effect by 
virtue of his second will ; and that his second will never being so 
perfected as to make the devise of the lands therein to be good, 
the same devise stood unrevoked by the former will. And that 

(o) Eddlestou v. Speake, 1 Show. 89. 3 Mod. 258. (Laughton v. Atkins, 1 Pick. 535. 
Short v. Smith, 4 East, 419. Supra, § 5, note.) 
(6) Onions v. Tyrer, 1 P. Wms. 343. 2 Vern. 741. 



approved ; unless the same be_ proved to have been so done by the oath of two wit- 
nesses at least, who shall be such as are admissible upon trials at common law." Car. 
& Nich. Dig. p. 707, § 14. And in Florida, it is provided, that any will may be re- 
voked by another will or codicil, duly executed; or, "by any other writing signed by 
the testator or testatrix, declaring the same to be revoked, or operating as a revocation 
thereof by law." t'homps. Dig. p. 192, $ 2. 



94 Title XXXVIII. Devise. Ch. VI. s. 21—25. 

upon the like reason the courts of law had determined with great 
justice in the cases cited. And it was plain the testator did not 
mean to revoke his former will by cancelling ; but by substitut- 
ing another perfect will in lieu thereof. 

22. In the case of Ellis v. Smith, (a) one of the questions was, 
whether the will, not being signed by the testator in the presence 
of the witnesses, but only acknowledged, was a good revocation 
under the sixth section of the statute. Lord Ch. B. Parker 
thought it was, and that a revocation might be by any will exe- 
cuted according to the fifth section of the statute. For the 
words " signed in the presence of three witnesses, &c," related 
only to the preceding words — " any other writing." The clause 
was to be construed in the disjunctive ; viz., either by will, cod- 
icil, &c, or by writing signed before three witnesses. And the 
other Judges were of the same opinion. 

23. A declaration by a devisor that he has revoked a particular 
devise in his will, though reduced into writing, and attested by 
three witnesses, will not operate as a revocation, unless it be 

signed by the testator. 
82 * * 24. A person devised certain estates to his daughters, ' 

D. and S. Afterwards the testator, having an intention 
to revoke the will as to D., directed the following words to be 
written on his will : — " We, whose names are underwritten, do 
testify, that the abovenamed A. (the testator) did, the day of the 
date hereof, publish and declare that the several clauses and 
devises in his will, any way relating to his daughter D., should 
cease and be void ; she being since married, and her portion paid. 
In witness whereof we have hereunto set our hands, &c." And 
the same was subscribed by four witnesses, in the presence of 
the testator ; but he did not sign the same, nor any other person 
by his direction. Adjudged, that this was not a revocation, (b) 

25. [But here should be noticed a distinction between a dec- 
laration in writing of a present actual revocation, and a declara- 
tion of intention to do some future act of revocation. The latter 
does not amount to a revocation. 1 

As where a person, by a second will, disposing of some prop- 
fa) Ante, u. 5. (J) Hilton v. King, 3 Lev. 86. 

1 The material distinction between a present actual revocation, and a declaration merely 



• Title XXXVIII. Devise. Ch. VI. *. 25—28. 95 

erty acquired subsequently to the making of his first will, added, 
" As to the rest of my real and personal estate, I intend to dis- 
pose of it by a codicil hereafter to be made to this my will ; it 
was held by the Court of K. B. that this was no revocation of the 
first will, (a) 

26. So again, where a revocation of a prior devise or bequest 
proceeds upon a mistake, the revocation will be void ; as where a 
testator revokes by codicil a devise to A, he being now dead, 
and it turns out A is living, the first devise will not be re- 
voked, (b) 

27. Or, where the revocation proceeds upon a false impression, 
originating- from a deceit practised upon the testator. As where 
a testator revokes a prior devise to A, and devises by a codicil 
the same estate to B, stating her to be his wife, and it turns out 
that she was married before, and had a husband living, which 
facts were unknown to the testator ; the first devise would not, it 
is presumed, be revoked, (c) 

28. But where the testator merely expresses a doubt respecting 
a fact, and upon that doubt revokes, it would seem that the re- 
vocation would be good; and the case of the Attorney-General 
v. Warde, seems to have been decided upon this principle, (d) 

In that case, the testatrix had bequeathed a legacy of £300 
among such of the children as should be living of E., and 
by a * codicil bequeathed as follows : " I give to my * 83 
.brother's son, C, the £300 designed for E.'s children, as I 
know not whether any of them are alive, and if they are well 
provided for ; " Sir R. P. Arden held C. to be entitled, though 
the children of E. were living. His honor, however, observed, 
" that if it rested upon her not knowing whether they were 
living, there would be some reason to contend, that it fell within 
the case (so often cited from Cicero de Oratore) of pater, credens 
filium swum esse mortuum, alterum instituit hceredem ; filio domi 
redeunte, hujus institutionis vis est nulla : but she goes further ; 

(a) Thomas v. Evans, 2 East, 488. (6) Campbell v. French, 3 Ves. 321. 

(c) See Kennell v. Abbott, 4 Ves. 802. 

(d) 3 Ves. 327. See also Att.-Gen. v. Lloyd, 3 Atk. 552. 1 Vez. 32. 



expressive of an intention to revoke, is illustrated in the following cases: Brown v. 
Thorndike, 15 Pick. 388 ; Ray v. Walton, 2 A. K. Marsh. 71 ; Gains v. Gains, Ibid. 1 90 ; 
Jackson v. Betts, 9 Cowen, 208; 6 Wend. 173, S. C; Smith v. Fenner, 1 Gall. 170. 



96 Title XXXVIII. Devise. Ch. VI. s. 28—29. * 

that she doubted if they were living, whether they might not be 
well provided for ; and she totally deprives them of that provis- 
ion. The Court will not inquire whether they are well provided 
for or not."] 

29. The fowrth mode of revoking a will is by cancelling, that 
is by obliterating or defacing the signature of the testator ; or 
by burning, tearing, or otherwise destroying it. But Lord 
Mansfield has observed, that cancelling is in itself an equivocal 
act ; and in order to make it a revocation, it must be shown quo 
cmimo it was cancelled; for unless that appears, it will be no 
revocation. 1 As if a man were to throw ink upon his will instead 



1 Any act of reprobation, spoliation, or destruction, done upon the instrument, by 
the testator, with intent thereby to cancel it, that is, to nullify and destroy its integ- 
rity and legal existence as a testament, amounts to what the law terms " cancellation." 
It must be actually done, and not merely intended to be done, but the intention aban- 
doned by dissuasion or change of mind, or otherwise totally prevented. The act may 
be very slight ; such as partially tearing, crumpling it up, and throwing it on the fire, 
though it were privately rescued and saved by another person. Bibb v. Thomas, 2 W. 
Bl. 1043 ; Winsor v. Pratt, 2 B. & B. 650 ; Johnson v. Brailsford, 2 N. & McC. 272; 
Dan v. Brown, 4 Cowen, 483 : Jackson v. Bctts, 6 Cowen, 377 ; [White v. Casten, 
1 Jones's Law R. (N. C.) 197.] 

So, tearing off a superfluous seal, is a sufficient act of cancellation. Avery v. Pix- 
ley, 4 Mass. 460. So, a, partial burning of the paper, though ever so slight. Doe v. 
Harris, 6 Ad. & El. 209 ; so, drawing lines across it. Bethel v. Moore, 2 Dev. & Bat. 
811. Or, destroying one of the copies, where the will was executed in duplicate. 
O'Neall «. Parr, 1 Richards, 80. 

But the act must be done, and not merely intended. Thus, where the testator, being 
blind, directed another person to destroy his will, and being told that it was destroyed, 
believed it ; whereas in fact it was deceitfully preserved entire by that person, no act 
having been done towards destroying it ; this was held no revocation. Boyd v. Cook, 
3 Leigh, 32 ; Giles v. Giles, 1 Cam. & Nor. 174. [So, where a testator ordered his' son 
to throw his will into the fire, and the son to deceive the father, threw in another paper 
and kept the will, this was held no revocation. Hise v. Pincher, 10 Ired. 139.] 

And the intent must be clear and final, the mind of the testator reposing upon it, as 
a finished act of revocation. If the act of spoliation or destruction is ambiguous, it will 
be interpreted and determined by the intent with which it was done ; and the intent will 
be ascertained by evidence aliunde. Bethel v. Moore, supra; Jackson v. Holloway, 
7 Johns. 394 ; Means v. Moore, 3 McCord, 282. It must be the intent of a sound and 
not of an insane mind. Ford v. Pord, 7 Humph. 92. And if the intention is changed, 
before the destruction or cancellation is completed, the partial destruction will be re- 
garded as a merely casual spoliation, and the instrument will be held still in force. 
Giles v. Giles, supra. 

If the will be once thus cancelled, it is finally revoked ; even though the testator, at 
the time, intended afterwards to make a new one, but never did so. Lemmer v. Lem- 
mer, 7 H. & J. 388 ; Bohannon v. Walcott, 1 How. 336. 

If a will is found cancelled or mutilated, among the testator's papers, after his de- 



Title XXXVIII. Devise. Ch. VI. s. 29—30. 97 

of sand, though it might be a complete defacing of the instru- 
ment, it would be no cancelling ; or suppose a man having two 
wills of different dates by him, should direct the former to be 
cancelled, and through mistake the person should cancel the 
latter, such an act would be no revocation of the will : or sup- 
pose a man, having a will consisting of two parts, throws one 
unintentionally into the fire, where it is burnt, it would be no 
revocation of the devises contained in such part. It is the in- 
tention, therefore, thfet must govern in such cases, (a) 

30. A person made a will, and intending to make some alter- 
ations in it, sent for a scrivener, and gave directions for another 
will. The scrivener accordingly drew a draft of another will 
which the testator signed ; and then, thinking he had made a 
new will, he pulled out the first will, and tore the seals from the 
first eight sheets of it ; which the scrivener seeing, asked him 
what he was doing ; to which he answered, " I am cancelling 
my first will." — " Pray," says the scrivener, " hold your hand ; 
the other will is not perfected ; it will not pass your real estate, 
for want of being executed pursuant to the Statute of Frauds." 

(a) Cowp. E. 52. 



cease, it is presumed that it was thus cancelled or mutilated by himself. But if it has 
been in the possession or power of a person interested to defeat it, this presumption 
will not arise ; and the cancellation must be shown to have been done by the testator. 
Bennett v. £herrod, 3 Ired. 303. So, if the will cannot be found, the presumption will 
be, that it was destroyed by the testator ; unless it appear to have been in the possession 
or power of some person, whose interests were adverse to it ; in which case, proof of 
its destruction by the testator, or other evidence explanatory of its absence, will be re- 
quired. Jones v. Murphy, 8 W. & S. 275 ; Bounds v. Gray, 2 Geo. Dec. 136 ; Minkler 
v. Minkler, 14 Verm. 125; Welsh v. Phillips, 1 Moore, 299; [Weeks v. McBeth, 14 
Ala. 474.] 

The cancellation or erasure of part of the will, intentionally restricted to that part, 
is only a revocation pro tanto. Means v. Moore, Harp. 314 ; Brown's Will, 1 B. Monr. 
57 ; Boyd v. Martin, 2 Dru. & Walsh, 355. As to alterations made in pencil, see supra, 
§ 4, note. 

An indorsement on the envelope of the will, not signed by the testator, is not deemed 
an act of revocation. Grantley'u. Garthwaite, 2 Buss. 90 ; Lewis v. Lewis, 2 W. & S. 
455. See further, 2 Greenl. Evid. § 681, 682, and cases there cited ; 1 Jarm. on Wills, 
ch. 7, sec. 2, 2d Am. ed. and notes by Perkins. 

[From the bottom of the several pages of a will, the name of the testator had been 
torn or cut. Part of one page had also been torn off, but was reannexed by a pin. 
The signature of the testator and of the subscribing witnesses at the end of the will 
remained. Held, that the will was not revoked entirely or partially. Clark v. Scripps, 
22 Eng. Law & Eq. 627.] 

VOL. III. 9 



98 Title XXXVIII. Devise. Ch. VI. s. 30—33. 

. " I am sorry for that," says he ; and immediately desisted 
84 * from *- tearing off the seals, and died in a short time after* 
without having done any thing further to perfect the sec- 
ond will, or to cancel the first, (a) 

It was decreed, that the tearing the seals ' from the first eight 
sheets, not being done animo cancellandi, was no revocation: 
and that the seal remaining whole to the last sheet was sufficient ; 
and in strictness it was not necessary that all the sheets should 
be sealed. 

31. In the case pf Onions v. Tyrer, as reported in Precl in 
Cha. 459, it is stated that the testator cancelled the first will, by- 
tearing off the seal. And as to this point, Mr. Cox has taken 
from the Register's book what Lord Cowper said ; which I shall 
here transcribe. — " And it is plain the testator did not mean 
to revoke his former will by cancelling, but by substituting 
another perfect will in lieu thereof, and not otherwise; and 
therefore the cancelling thereof was but a circumstance, show- 
ing that he thought he had made a good disposition by the 
second will; and in confidence thereof it was done, with no 
other intent but that the second will should thereby more surely 
take place." It was decreed that the first will was not re- 
voked, (b) 

32. A will can only be cancelled by the testator himself, or by 
some other person in his presence, and by his express direction;" 1 
so that if a stranger destroys or defaces a will, that does not 
operate as a revocation of it. 

33. A person having disinherited his heir by will, a younger 
brother of the heir snatched the will out of the hands of the ex- 
ecutor, and tore it into small pieces. Most of the pieces, partic- 
ularly such parts wherein was the devise of the land, were 
picked up, and stitched together again. A bill was filed to have 
the will established ; and it was decreed, that the devisee should 

(a) Hyde v. Hyde, 1 Ab. Eq. 409. (5) Ante, s. 21. 1 P. Wms. 344, n.-l. 

• 

1 A seal is not essential to the validity of the will. Supra, ch. 5, § 11, note. 

* In New York, if the act of cancellation is done by another person, " the direction 
and consent of the testator, and the fact of such injury or destruction, shall be proved 
by at least two witnesses." N. York Rev. St. Vol. II. p. 124, § 34, 3d ed. The statute 
of Arkansas is in the same words, substituting "or," for "and," and omitting the words 
" injury or." Ark. Bev. St. 1837, ch. 157, § 6. 



Title XXXVIII. Devise. Ch. VI. s. 33—35. 99 

hold and enjoy against the heir ; and he to convey to the dev- 
isee ; although there was no positive proof that the heir directed 
the tearing of the will, (a) 

34. Any act of a testator, by which he shows an intention to 
cancel his will, though the will be not actually cancelled, oper- 
ates as a revocation. 

35. One Palin, who had for two months together frequently 
declared himself discontented with his will, being one day in 
bed, near the fire, ordered Mary Wilson, who attended him, 

to *fetch his will, which she did, and delivered it to him, * 85 
it being then whole, only somewhat erased. He opened it, 
looked at it, then gave it something of a rip with his hands, and 
so tore it as nearly to tear a bit off, then rumpled it together and 
threw it on the fire, but it fell off. However, it must soon have 
been burnt, had not Mary Wilson taken it up, and put it into her 
pocket. Palin did not see her take it up, but seemed to have 
some suspicion of it, as he asked her what she was at, to which 
she made little or no answer. He at several times after said, 
that was not, and should not be his will, and bid her destroy it. 
She said at first, so I will when you have made another ; but 
afterwards, upon his / repeated inquiries, she told him she had 
destroyed it ; though in fact it was never destroyed, and she 
believed he imagined it was so. She asked him, when the will 
was burnt, to whom his estate would go ; he answered, to his 
sister and her children. He afterwards told one J. E. that he had 
destroyed his will, and should make no other, till he had seen his 
brother, John Mills, and desired J. E. would tell him so, and that 
he wanted to see him. He afterwards wrote to Mills, in these 
terms : " Dear brother, I have destroyed my will which I made ; 
for, upon serious consideration, I was not easy in my mind about 
that will : " afterwards desires him to come down, " for if I die 
intestate, it .will cause uneasiness." He however died without 
making any other will, (b) 

The jury, with whom the Judge concurred, thought this a suffi- 
cient revocation of the will ; and therefore found a verdict for the 
heir. A motion was made for a new trial, " and per totam curiam, 
this is a sufficient' revocation." A revocation under the statute 
may be effected, either by framing a new will, amounting to a 

(a) Haines v. Haines, 2 Vern. 441. (b) Bibb v. Thomas, 2 W. Bl. E. 1043. 



100 Title XXXVIII. Devise. Ch. VI. s. 35—37. 

revocation of the first, or by some act done to the instrument or 
will itself; namely, burning, tearing, cancelling, or obliteration 
by the testator, or in his presence, and by his directions and con- 
sent ; but these must be done animo revoccmdi ; each must ac- 
company the other. Revocation is an act of the mind, which 
must be demonstrated by some outward and visible sign or symbol 
of revocation. The statute has specified four of these; and if 
these, or one of them, are performed in the slightest manner, 
this, joined with the declared intent, will be a good revocation. 
It is not necessary that the will or instrument itself be totally 
destroyed or consumed, burnt or torn to pieces. The pres- 
86* ent case falls within *two of the specific acts described 
by the statute. It is both a burning and a tearing; 
throwing it on the fire with an intent to burn, though it is 
only very slightly singed, and falls off, is sufficient within the 
statute, (a) 

The rule for a new trial was discharged. 

36. The intention to cancel a will, must, however, be carried 
into complete effect, by the entire destruction of it, otherwise it 
will remain good. 1 

37. A testator, being angry with one of the devisees named 
in his will, began to tear it, with, the intention of destroying it, 
and having torn it into four pieces, was prevented from proceed- 
ing further, partly by the efforts of a bystander, who seized his 
arms, and partly by the entreaties of the devisee. Upon this he 
became calm, and having put by the several pieces, he expressed 
his satisfaction that no material part of the writing had been 
injured, and that it was no worse. Held, that it was on the^e 
facts properly left to the jury to say, whether he had completely 
finished all that he had intended to*do for the purpose of destroy- 

(«) Pemberton v. Pemberton, 13 Ves. 290. 



1 That is, the act of cancellation, intended by the testator, whether it were one of 
total or only partial destruction of the instrument, must have been done. Supra, § 29, 
note. 

Where one made his will, and afterwards made two codicils ; and subsequently burnt 
the will, expressing at the same time his intention not to revoke the codicils, but to 
make a new will ; and died, leaving the two codicils, but without having made any 
new will ;— it was held; that the codicils were entitled to probate; the intention of the- 
testator that they should operate being proved. Clogstoun v. Walcott, 12 Jur. 422. 



Title XXXVIII. Devise. Ch. VI. s. 37—41. 101 

ing the will ; and the jury having found that he had not, the 
Court of K. B. refused to disturb the verdict, and supported the 
will, (a) 

38. An obliteration or alteration of part of a will does not 
operate as a revocation of the whole will, but only of the parts 
obliterated ; and the rest will remain good. 

39. A, by will in writing, duly attested, devised to his wife a 
copyhold estate, A, on the day he died, directed B to obliterate 
some devises, but nothing as to the copyhold ; and then caused a 
memorandum to be written, that he had examined and approved 
of the will, as so obliterated and altered in his presence by B, 
but did not republish it in the presence of three witnesses ; but 
directed B to carry it to one to write it fair ; and before it was 
brought back he became delirious. Held to be a good will of 
the copyhold, (b) 

40. Robert Sutton made his will, duly attested, and thereby 
gave all his estates, except a house at Bath, to trustees, in trust 
to sell, and to place out the money on government or real secu- 
rities, for the purposes therein mentioned. The testator after- 
wards made several alterations, obliterations, and interlineations, 
in different parts of the will, which were not attested ; but 

did not erase or alter the devise to the trustees. * It was * 87 
certified by the Court of King's Bench, upon a case sent 
out of Chancery, that the devise of the real estate to the trustees 
was not revoked, (c) 

41. A person devised a real estate to three trustees and their 
heirs, upon trust to sell. Some time after, the testator struck out 
the name of onp of the trustees, by drawing a pen through it ; 

^and the question was, whether, the devise to the trustees was 
revoked by the erasure of the name of one of them, after the 
execution of the will, (d) 

Upon a case sent from the Court of Chancery for the opinion 
of the Court of Common Pleas, Lord Alvanley said, that a revo- 
cation by obliteration, would have the same effect which a revo- 
cation by any other means would have, and no more ; that the 
devisees must be considered, in a court of law, as joint tenants 
in fee absolutely ; that it was argued, that the revocation of the 

(a) Doe v. Perkes, 3 Barn. & Aid. 489. (i) Burkitt v. Burkitt, 2 Vern. 498. 

(c) Sutton v. Sutton, Cowp. 812. Winsor v. Pratt, 2 B. & K. 65Q. 

(d) Larkins v. Larkins, 3 Bos. & Pul. 16. 

9* 



102 Title XXXVIII. Devise. Ch. VI. s. 41—42. 

devise, as to one devisee, made an alteration in the interest of 
the others ; but whatever this alteration was, it was not an alter- 
ation arising from a new gift, but merely from a revocation. If 
the remaining devisees were to acquire any estate, which they 
had not before, something beyond a mere revocation would be 
necessary. If, therefore, the devisees had been tenants in com- 
mon, upon the erasure of one name, the remaining two would 
take no more than two thirds of the estate. 

The Court certified, that the devise of the estate to the two 
trustees, to whom, together with the third trustee, the said estate 
was devised, as joint tenants, in trust to be sold, was not revoked 
by the testator's having struck out the name of the third trustee, 
after the execution of the said will. 

42. T. Carwardine duly made his will, by which he devised 
the premises in question to J. Spillman and E. Aldridge, upon 
several trusts. The testator afterwards made several alterations 
in the will, and among others struck out the name of J. Spillman, 
and introduced the names of J. Wood and J. Adey ; and did not 
afterwards republish his will. The question was, whether it was 
revoked or not. (a) 

Lord Ellenborough. — " It has been contended, in this case, that 
the testator, T. C, has died intestate, as to the premises in ques- 
tion, and that his heir at law is entitled to recover ; inasmuch as 
the obliteration of the name of J. Spillman, one of the devi- 
sees in trust, must have been taken to have been done 
88 * * animo revoecmdi, and is a revocation of the devise made 
of the premises : and that it must be also taken that his 
intention was to have another will, accompanied with the solem- 
nities required by the Statute of Frauds ; or at least to have 
republished the will, obliterated and altered as it is ; on which the 
question arises ; and the case in Dyer, 310, b, has been relied on. , 
The facts of this case plainly show, that the testator had no 
object but to change his trustee ; and it would be unreasonable, 
when he has not, by any thing he has done, indicate/i any inten- 
tion to dispose of his lands to different purposes than those 
declared by his will, and when it clearly appears that he meant 
to disinherit his heir at law, to infer that he designed that his 
will should become inoperative, and so let in his heir at law, by 

(a) Short v. Smith, i East, 419. 



Title XXXVIII. Devise. Ch. VI. 5. 42—43. 103 

what he did ; rather than to conclude that he thought he had, 
by the alterations introduced, made a valid disposition of his 
estate to the new trustees ; and that he had no design to alter his 
will, except so far as such obliteration and interlineation could 
effectuate that purpose, by substituting the persons whose names 
he interlined, in the stead of him whose name was struck out. 
If such be the case, and so it appears to us, the testator meant 
no revocation, but by means of that which he, through mistake, 
supposed to be a valid disposition to others ; and had no inten- 
tion to revoke, by the obliteration he has made, but by an effec- 
tual substitution, meant to be made of others in the room 
of him whose name was so obliterated ; and if so, this case 
must be governed by that of Onions v. Tyrer, 1 P. Wms. 343, (a) 
where the intention of the testator not being to revoke his 
first will by cancelling, but by substituting another perfect 
will in lieu thereof, Lord Chancellor Cowper, on the same 
ground, set up a like devise, and held a cancellation of the first 
will to be no revocation. But in this case, it has been further 
argued for the defendants, that supposing the obliteration of the 
name of Spillman to have revoked the devise to him, the heir at 
law cannot recover, inasmuch as the devise to Aldridge remained 
unrevoked ; and we think there is great weight in this argument ; 
and that there are grounds on which it may be contended, that 
the effect of the obliteration in this case is, at most, to revoke only 
the devise as to Spillman, the one devisee in trust, whose 
name is so obliterated, leaving * it unrevpked as to Al- * 89 
dridge ; the interlineations which were intended to add 
other trustees, being, for want of a proper publication, inopera- 
tive ; and therefore, giving its full effect to that obliteration, it 
would leave the devise to Aldridge in full force, and competent 
to sustain all the trusts of the will, in exclusion of the heir at 
law. 

43. "Where there is a duplicate of a will, and the testator can- 
cels the part which is in his own possession, though the other 
remains entire, yet this cancelling one part operates as a revoca- 
tion of the whole will; for the original and duplicate being but 
one will, they must stand or fall together ; and it may not be in 
the testator's power to get possession of the duplicate, (b) 

(a) Ante, s. 21. 

(6) 2 Vern. 742. 1 P. Wms. 346. Burtonshaw v. Gilbert, infra, ch. 1, § 19. 



104 Title XXXVIII. Devise. Ch. VI. s. 44-45. 

44. Besides the different modes of revoking a will, allowed by 
the Statute of Frauds, there are certain alterations in the situa- 
tion of the testator, or in the estate devised, which have been 
held to operate as implied revocations of a devise. l 

45. It is now fully settled, that where a man makes his will, 
and afterwards marries and has a child, these events shall oper- 
ate as a revocation of his will ; because they produce a complete 
change in the situation, and the duties of the testator. 2 



1 [A great change in the pecuniary circumstances of the testator, and some change in 
his social relations and moral duties, does not amount to an implied revocation of a 
will. Verdier v. Verdi'er, 8 Rich. (S. C.) 135.] 

2 In several of the United States, the effect of marriage and the birth of a child, 
upon a. prior -will, has been definitively settled by statute. Thus, in Rhode Island, a 
will is ipso facto revoked " by a marriage of the testator subsequent to the date 
thereof." R. Is!. Rev. St. 1844, p. 231. [See Wheeler v. Wheeler, 1 Rhode Island, 
364.] In Connecticut, " If, after the making of a will, a child shall he born to the tes- 
tator, and no provision shall be made in the will for such contingency, such birth shall 
operate as a revocation of such will." Conn. Rev. St. 1849, p. 346, 347. 

In New York, the enactment is more particular. " If, after the making of any will, 
disposing of the whole estate of the testator, such testator shall marry, and have issue 
of such marriage, born either in his lifetime, or after his death, and the wife or the issue 
of such marriage shall be living at the death of the testator, such will shall be deemed re- 
voked, unless provision shall have been made for such issue by some settlement, or 
unless such issue shall be provided for in the will, or in such way mentioned therein as 
to show an intention not to make such provision ; and no other evidence to rebut the 
presumption of such revocation shall be received." N. Y. Rev. St. Vol. II. p. 124, § 35, 
3d ed. In Arkansas, Indiana, and Missouri, the language of the statutes is substan- 
tially the same as in New York. Ark. Rev. St. 1837, ch. 157, § 7 ; Ind. Rev. St. 1843, 
ch. 30, § 8 ; Misso. Rev. St. 1845, ch. 185, $ 7. 

In Pennsylvania, if the testator, after making his will, " shall marry or have a child 
not provided for in such will, and die leaving a widow and child, or either a widow or 
child, though such child be born after the death of the father, every such person, so far 
as shall regard the widow or child, shall be deemed and construed to die intestate." 
Dunlop's Dig. p. 573, § 15 ; Coates v. Hughes, 3 Binn. 498; Tomlinson v. Tomlinson, 
1 Ashm. 224. , 

In Virginia, if the testator, having no issue then living, shall make a will, wherein 
any child he may have' is not provided for nor mentioned, and shall at his death leave 
a child, or leave his wife pregnant of a child which shall be born ; the will " 6hall have 
no effect during the life of such after-born child, and shall be void, unless the child die, 
without having been married, and before he or she shall have attained the age of twenty- 
one years." Tate's Dig. p. 892. In New Jersey, in the like case, the will is declared 
void ; without reference either to the marriage or majority of the child. N. Jer. Rev. 
St. 1846, p. 368, § 20. 

In South Carolina, a will is revoked by the subsequent marriage of the testator, and 
his death, leaving issue. S. Car. Stat, at Large, Vol. V. p. 107 j Jacks v. Henderson, 1 
Desau. 543, 557. 

In Georgia, the will is revoked, if the testator shall afterwards marry or have a child 



Title XXXVIII. Devise. Ch. VI. s. 46—48. 105 

46. A person made his will in the time of a former wife, who 
died without having had any children ; and afterwards married 
a second wife, by whom he had issue the plaintiff. The Court 
of Exchequer held that the second marriage, and the having 
issue by that marriage, was a revocation of the will, (a) 1 

47. A person made a will in Jamaica, in the year 1764, by 
which he devised his real and personal estate to the defendant. 
Afterwards he made another will in England, not duly attested, 
by which he devised his real and personal estate to his wife, in 
trust for his son. The Chancellor of Jamaica decreed, that the 
marriage and birth of a child, and the second will, amounted to 
a revocation as to the personalty, but not as to the real estate, (b) 

On an appeal to the Privy Council, Lord Ch. J. De Grey, Lord 
Ch. B. Parker, and Sir Eardley Wilmot being present, so much 
of the decree as established the first will, with respect to the* real 
estate, was reversed. And it was declared, that the subsequent 
marriage and birth of a child were, in point of law, an implied 
revocation of the first will. 

48. Marriage and birth of a child do not, however, in 

all cases, * amount to an implied revocation of a devise ; * 90 
for these facts only afford a presumption that the testator 

(a) Christopher v. Christopher, 4 Burr. 2182. 

(b) Spragge v. Stone, 1 Doug. 35. Amb. 721. (Wilcox v. Kootes, 1 Wash. 140. Havens 
v. Van Den Burgh, 1 Denio, 27.) 



born ; no provision being made for either wife or child in the will, and no alteration 
being made in the will, subsequent to the marriage or birth of the child. Geo. Rev. 
St. 1845, p. 457, § 16. 

In Ohio, " If the testator had no children at the time of executing his will, but shall 
afterwards have a child living, or born alive after his death, such will shall be deemed 
revoked ; " unless the child shall have been provided for by some settlement, or in the 
will, or so mentioned therein as to show an intention not to make such provision ; 
" and no other evidence, to rebut the presumption of such revocation, shall be received." 
Ohio Rev. St. 1841, ch. 129, § 40. 

In Louisiana, " the testament falls by the birth of legitimate children of the testator, 
posterior to its date." Louis. Civil Code, art. 1698. 

In all the other States, this subject is believed to have been left to the implication of 
law. 

1 Whether the birth of a child by the first wife, after the making of the will; and 
after the death of the first wife, a second marriage, but no more children ; is a revoca- 
tion of the will ; — qucere. See 4 Ves. 848 ; Yerby v. Yerby, 3 Call. 334 ; 1 Jarm. on 
Wills, 108. 



106 Title XXXVIII. Devise. Ch. VI. s. 48—49. 

had changed his intention ; so that where this presumption is 
rebutted by other circumstances, the rule will not hold. 1 

49. A bachelor made his will, by which he gave a legacy of 
£500 to his brother, and legacies to other persons, and devised 
his real estate to Eliza Close and her heirs. The testator after- 
wards married Eliza Close, and died without altering his will ; 
leaving her pregnant of a son. The question was, whether this 
alteration in the testator's situation operated as a revocation of 
his will. Lord Keeper Wright was clearly of opinion, that an 
alteration of circumstances might amount to a revocation of a 
will of lands, as well as of personal estate ; notwithstanding the 
Statute of Frauds, which does not extend to an implied revoca- 
tion. But that no such alteration appeared here, for no injury 
was done to any person ; and those were provided for, for whom 
the testator was most bound to provide. And he established the 
will, (a) 

(a) Brown v. Thompson, 1 Ab. Eq. 413. 



1 This doctrine, that the presumption is not conclusive, has been overruled, upon 
great consideration, in the cases of Marston v. Eoe, 8 Ad. & El. 14 ; and Israeli v. 
Eodon, 2 Moore, P. C. E. 51 ; in the former of which the following points were 
resolved : — 

1. Where an unmarried man, without children by a former marriage, devises all the 
estate he has at the time of making his will, and leaves no provision for any child of a 
future marriage, the law annexes to such will, the tacit condition, that if he afterwards mar- 
ries, and has a child bora of such marrjage, the will shall be revoked. Upon the hap- 
pening, therefore, of those two events, the will is, ipso facto, revoked. 

2. Evidence, not amounting to proof of publication, cannot be received in a court 
of law, to show that the testator intended that his will should stand good, notwithstand- 
ing his subsequent marriage and the birth of issue ; because these events operate as a 
revocation, by force of a rule of law, and independent of the testator. 

3. The operation of this rule of law is not prevented by a provision in the will, or 
otherwise, for the future wife only; such provision must also extend to the children of 
the marriage. 

4. The provision, also, must be made by the will ; the condition, annexed to it by 
law, so far as relates to the existence or extent of the provision, having reference, in 
its own nature, to the existing state of things at the time the will itself was made. 
And it must give to the child a beneficial and not a merely legal interest as a 
trustee. 

Therefore it was held, that the descent of after-acquired lands upon the child, did 
not prevent the operation of the rule of revocation above stated; especially as the 
child, in the case at bar, took only a legal estate in trust for the devisee. See also, as 
to the conclusiveness of the presumption, Goodtitle v. Otway, 2 H. Bl. 522, by Eyre, 
C. J. ; Doe v. Lancashire, 5 T. E. 58, perLd. Kenyon ; Gibbons v. Caunt, 4 Ves. 848 ; 
Walker v. Walker, 2 Curt. 854. 



Title XXXVIII. Devise. Ch. VI. s. 50—53. 107 

50. Lord Mansfield has said, that as marriage and the birth 
of a child only amount to an implied revocation of a former will, 
these may be rebutted by every sort of evidence, even parol evi- 
dence ; 1 and there was no case, in which a marriage and the birth 
of a child had been held to raise an implied revocation, where 
there had not been a disposition of the whole estate, (a) 

51. It has been held by Lord Eldon, that a second marriage 
and the birth of children, the wife and children being provided 
for by settlement, and there being children by a former marriage, 
was a case of exception from the rule that marriage and the birth 
of a child revoke a will, (b) 

52. It was determined, in a modern case, that marriage, and 
the birth of a posthumous child, operated as a revocation of a will 
of land made before the marriage. 

53. A person being a bachelor, devised lands to his nephew, 
and afterwards married. Upon his wife becoming pregnant, he 
expressed an intention to revoke his will, and gave directions 
to an attorney to prepare another will ; but died before it was 
ready. After his death, his widow was delivered of a child, who 
brought an ejectment against the devisees, (c) 

Lord Kenyon said, it had been solemnly decided, that marriage 
and the subsequent birth of a child amounted to a revo- 
cation of * a will, made before marriage. Perhaps the * 91 
foundation of that principle was not so much an intention 
to alter the will, implied from those circumstances happening 
afterwards, as a tacit condition annexed to the will itself, at the 
time of making it, that the party did not intend that it should 
take effect, if there should be a total change in the situation of 

(a) Brady v. Cubitt, 1 Doug. 31. (Havens v. Van Den Burgh, 1 Denio, 27. Yerby v. Yer- 
by, 3 Call, 334. Brush v. Wilkins, i Johns. Ch. 510.) (5) Ex parte Ilchester, 7 Ves. 348. 
(c) Doe v. Lancashire, 5 Term E. 49. 



1 This opinion of Ld. Mansfield is overrule?! in Marston v. Roe, 8 Ad. & El. 14; 
though the decision of the cause itself is approved on other grounds, namely, that the 
disposition, made by the will, was of part only, and not the whole of the estate ; and that 
the instrument, executed after the birth of the child, operated as a republication of the 
devise 'contained in the will. And see Goodtitle v. Otway, 2 H. Bl. 516, 522, the ob- 
servation of Byre, C. X, upon the case in the text. 

If a devise be revoked by a subsequent marriage, with issue, it cannot be again set 
up, by a subsequent will, not executed with the formalities requisite to pass real estate. 
Brush v. Wilkins, 4 Johns. Ch. 510. 



108 Title XXXVIII. Devise. Ch. VI. s. 53. 

his family. He cited a passage from Justinian's Institutes, (a) 
and one from Vinnius's Comment, (b) to show, that by the civil 
law, if the wife was pregnant, and a posthumous child was after- 
wards born, the . will was utterly destroyed. And this, he ob- 
served, confirmed the idea that these decisions did not proceed 
on the intention of the party, but on a tacit condition annexed 
to the will itself when made ; and that our law also took notice 
of posthumous children. For these reasons, therefore, standing 
on former decisions, and not extending them beyond the rule 
established and incorporated into our law, he was of opinion for 
the plaintiff. But he disclaimed paying any attention to the dec- 
larations of the husband, because letting in that kind of evidence 
would be in direct opposition to the Statute of Frauds, which was 
passed in order to prevent any thing depending either on the 
mistake or the perjury of witnesses. But when the act intended 
to guard against frauds and perjuries, it left the courts at liberty 
to take into consideration those circumstances which ar,e not 
liable ta prevarication. 

Mr. Just. Buller said, the only question was, whether a child 
in ventre sa mere, be or be not in the same situation as a child 
actually born, and that there was no distinction between them. 
He had looked into the Register's book for the case of Brown v. 
Thompson, (c) where it did not appear that the child was born 
during the parent's .life. That case was first heard before the 
Master of the Rolls, who decreed a revocation of the will ; though 
that decree was afterwards reversed by Lord Keeper Wright, 
from the peculiar circumstances of the case. They must take it, 
he thought, that in that case, the child was not born during the 
devisor's life ; if so, the opinion of the Master of the Rolls went 
the full length of deciding the case ; and he agreed, that that 
opinion was sound law. The Court was unanimous that the 
will was revoked. 1 

(a) (Inst. lib. 2, tit. 13.) (6> (Vin. lib. 2, tit. 13.) (c) Ante, s. 49. 



' But where a man, being married, but without issue, made his will, dewsing lands 
to his niece ; and afterwards died, leaving his wife pregnant, which fact was unknown 
to him ; it was held, that the will was not revoked by the birth of the child. Doe u. 
Barford, 4 M. & S. 10. This case was apparently decided on the ground, that the tes- 
tator was ignorant of the change in his situation and obligations. But taking the revo- 
cation to result, in such cases, from an imperative rule of law, as now settled in Mars- 



Title XXXVIII. Devise. Ch. VI. s. 54—56. 109 

54. Although it be fully established, in the preceding cases, 
that marriage and the birth of a child operate as an implied 
revocation * of a devise of land ; yet it has never been * 92 
decided that either of those circumstances singly, as, a 
subsequent marriage, or the subsequent birth of a child, will have 
that effect, (a) 

55. J. Pierson devised all his real estates, to a trustee, in trust, 
to pay an annuity to Mary Simpson, and in case he should have 
any children by her, to provide for their maintenance, and to 
raise £3,000 for them ; at the time of making the will the testator 
had one child by M. Simpson ; afterwards he married her and 
had three children, and died without altering his will, (b) 

It was held, that the will was not revoked by the subsequent 
marriage, and birth of children ; because there was not that total 
change in the situation of the family, and that total destitution 
of provision for those who ought to be the objects of the testa- 
tor's care and protection, (although the provision was made for 
them under a different character,) which could vacate the will on 
the ground of a supposed tacit condition, that it should be void 
upon a total change in the situation of the testator's family, and 
a total want of provision for the family so newly circumstanced ; 
or upon the ground of a presumed intention to revoke, according 
to any rules of law hitherto recognized on this subject, (c) 

56. It has been determined lately, that where a widower hav- 
ing a son and two daughters, made his will, by which he gave 
all his real estate in trust for those children, and afterwards mar- 
ried and had other children, his will was not thereby revoked. 
For such revocation would operate only to let in the eldest son 
to the whole of the estate, which he had by the will divided 
between that eldest son, and the other children of the mar- 
riage, (d) 1 

(o) Jackson v. Hiirlook, 2 Eden, E. 263. (Church i>. Crocker, 3 Mass. 17, 21.) 
(b) Kenebel v. Scrafton, 2 East, 530. (Marston v. Roe, 8 Ad. & El. 14. Sheppard v. 
Sheppard, 5 T. B. SI, n,) (c) 1 Ves. & B. 465. 

(d) Sheath v. York, 1 Ves. & B. 390. (Yerby v. Yerby, 3 Call, 334.) 



ton v. Roe, and Israeli v. Rodon, supra, § 48, note, and not from any presumed change 
of intention, the propriety of this decision may well be questioned. 

1 And it seems, more generally speaking, that a will is not revoked by a second mar- 
riage and the birth of children of that marriage, if the estate is so. situated that such 

VOL. III. 10 



110 Title XXXVIII. Devise. Ch. VI. s. 57—59. 

57. The marriage of a woman operates as a revocation of a 
will, made by her prior to such marriage ; for if the wife dies 
before her husband, it can have no operation ; the making of 
the will being only the inception of it, as it does not take effect 
till the death of the devisor. But if the wife survives her hus- 
band, the will is revived, and takes effect as if she had never been 
married, (a) 1 

58. It was established as a rule of law, long before the Statute 
of Wills, that any alteration in the estate of lands devised, by 
the act of the devisor, after the publication of his will, operated 
as an implied revocation of such will. This doctrine is founded 

on three reasons. I. On the favor which the common 
93* law * shows in every instance to the heir. II. On a prin- 
ciple already stated, (b) that a devisor must not only be 
actually seised of the lands, at the time when he makes his will, 
but must also continue to be so seised thereof, till the time of 
his death. 2 III. Because any alteration of the estate devised 
is held to be evidence of an alteration in the intention of the 
devisor. 

59. An actual alienation or disposition of an estate by the devi- 
sor, after he has made his will, operates as a revocation of the 

(a) Forse and Hembling's case, 4 Rep. 61 a. 2 P. Wms. 625. Hodsden v. Lloyd, 2 Bro. 
C. C. 534. (*) dap. 3. 



children can take no benefit by the revocation. Sheath v. York, supra. And see John- 
son v. Wells, 2 Hagg. 561 . 

1 In Pennsylvania, it is enacted, that the marriage of a feme sole shall be a revocation 
of her will ; and that it shall not be revived by the subsequent death of the husband. 
Dunlop's Dig. p. 574. In Indiana, Missouri, and Arkansas, also, the marriage of a 
feme sole is declared by statute to be a revocation of her will. Ind. Rev. St. 1843, 
ch. 30, ^ 9 ; Misso. Eev. St. 1845, ch. 186, $ 8 ; Ark. Eev. St. 1837, ch. 157, § 8. But 
in Ohio, it is enacted, that "a will, executed by an unmarried woman, shall not be 
deemed revoked by her subsequent marriage." Ohio Eev. St. 1841, ch. 129, § 39. 

In several other States, laws have been recently made, by which the property of the 
wife remains her own, and subject to her own control, after "the marriage, as it was be- 
fore; the husband's power over and interest in it, at common law, being taken away ; 
and she also has the power of devising the same. What effect the marriage of a feme 
sole would have upon her will previously made, in those States, is not known to have 
been judicially determined. See ante, ch. 2, § 5, note. 

2 This reason cannot apply in those States where lands may pass by devise, of which 
the testator had no seisin at the time of making the will ; or which were afterwards 
acquired. See ante, ch. 3, § 8, 32, 37, notes. 



Title XXXVIII. Devise. Ch. VI. s. 59—63. Ill 

devise ; * for in such case, the devisor does not die seised ; and 
his alienation is deemed undoubted evidence of an alteration of 
intention, in conformity to the rule of the Roman law, from 
which this doctrine was probably derived ; est enim rei legatee 
alienatio species tacitce ademptionis ; quoniam hoc ipso, quod testa- 
tor rem in alium transfert, recedere d priore voluntate videtur. (a) 

60. A person devised all his manors, messuages, and heredita- 
ments to trustees, in trust for his nephew and his issue, in strict 
settlement. The testator afterwards conveyed an advowson, 
whereof he was seised at the time of making his will, to trustees 
and their heirs, and by another deed declared the trust of their 
conveyance to be to present the son of R. I. (b) 

It was decreed by Lord Hardwicke, that the conveyance of 
the advowson was a complete revocation of the devise of it. 

61. Eliz. Milner devised a house to her sister Catherine for 
life, and after her decease, devised the same to trustees, in trust 
to sell. The testatrix afterwards sold the estate herself. It was 
decreed that the sale was a revocation, not only of the house, 
but also of the devise of the money to arise from the sale, (c) 

62. Even an agreement or covenant to convey lands, which 
have been previously devised by will, operates in equity, though 
not at law, as a revocation of such devise. 2 

63. A person devised six houses to his wife ; afterwards the 
testator, by articles, covenanted, in consideration of the marriage 
of his eldest daughter, to settle a moiety of his real estate on her. 
Lord King held, that though this was but a covenant, and there- 
fore did not, at law, revoke the will ; yet it being for a valuable 
consideration, was, in equity, tantamount to a conveyance ; ajid 
consequently a revocation of the will, (d) 

(a) Vin. ad Inst. Lib. 2, tit. 20, s. 12. (4 Kent, Comm. 528-531. Minnse v. Cox, 5 Johns. 
Ch. 441.) 

(i) Sparrow o.^Hardcastle, Arab. 224. 3 Atk. 799. 

(c) Aruald v. Arnald, 1 Brp. C. C. 401. See also Newbold v. Roadknight, 1 Eus. & Myl. 
677. {d) Kider v. Wager, 2 P.- Wms. 328. 

1 If the alienation be in fee, it is a revocation, though the grantor reserved a ground 
rent. Skerrett v. Burd, 1 Whart. 246 ; [Herrington v. Bndd, 5 Denio, 321.] 

[Balliet's Appeal, 14 Penn. State R. (2 Harris,) 451. A mortgage is a revocation of 
the will pro tanto. McTaggart v. Thomson, 14 lb. 149. But if the same land is recon- 
veyed to the testator, and he is the owner of it at the time of his death, the devise will 
be in force, though the will should not be formally republished. Brown v. Brown, 
16 Barb. 569.] 

2 [Donohoo v. Lea, 1 Swan. (Tenn.) 119.] 



112 Title XXXVIII. Devise. Ch. VI. s. 64—68. 

64. In a subsequent case, it is said by Lord King, that though 
a covenant or articles do not, at law, revoke a will, yet if entered 

into for a valuable consideration, amounting in equity to 
94 * a conveyance, * they must consequently be an equitable 
revocation of a will, (a) 

65. In a modern case, Lord Rosslyn held, that an agreement 
for a partition operated as a revocation of a devise ; and said, 
that where an estate was devised specifically, and was afterwards 
sold by the testator, by a contract executory, the estate went from 
the devisee. And Sir Wm. Grant held, that a covenant to sur- 
render copyhold estates operated as a revocation in equity of a 
prior will, (b) 

66. In all cases of this kind, the legal estate passes by the will 
to the devisee ; but the Court of Chancery will compel him 
to convey it to the person entitled under the equitable agree- 
ment, (c) 

67. [If the contract for sale be binding on the testator, it will 
be equally a revocation of the prior will, though the contract be 
rescinded after the testator's decease. 

68. Thus, where a testator, subsequently to the making of his 
will, contracted to sell certain estates in Virginia and Maryland, 
and the contract was after his death declared void, by a court of 
judicature in the United States, on account of the nonpayment 
of the price by the vendee ; on the bill, filed by the devisee 
against the testator's heir at law, Sir William Grant, M. R., held 
that the contract, being valid at the death of the testator, was a 
revocation ; his honor observing, that it was not alleged that the 
vendor had not a title.] (d) 1 

(a) Cotter v. Layer, 2 P. Wms. 623. 

(6) Knollys v. Aleook, 5 Ves. 648. 7 Ves. 558. Vawser v. Jeffrey, 16 Ves. 519. 

(c) 2 P. Wms. 626. 

(d) Bennett v. Lord Tankerville, 19 Ves. 170. (Mayer v. Gowland, Dick. 663. Tebbott v. 
Oules, 6 Sim. 40.) * 



1 The doctrine of revocation, contained in this and several of the preceding and 
subsequent cases, was reviewed by the learned Chancellor Kent, with his usual depth 
of research, in Walton v. Walton, 7 Johns. Ch. 258. In that case, the testator, own- 
ing a large tract of land between the Delaware and Susquehannah rivers, devised the 
same to the plantiffin fee ; and afterwards caused the lands to be surveyed and divided 
into lots for the purpose of sale ; and entered into written contracts for the sale of 
several of these lots, receiving part of the purchase-money, taking securities for the 
residue ; and then died. The bill prayed, among other things, for an account of the 
moneys received ; and was resisted on the ground that by these contracts, the devise 



Title XXXVIII. Devise. Ch. VI. s. 69. 113 

69. Even an intended alienation of an estate, previously de- 



to the plantiff was as to these lots, revoked. Upon this branch of the case, the Chan- 
cellor's observations will be read by the student with advantage. After referring to 
the contracts, and remarking that they were binding on the testator, and liable to be 
specifically enforced in equity, he proceeded to say, — " I entertain no doubt that the 
devise, so far as those contracts, of sale affected the lands devised, was revoked." The 
case of Knollys v. Alcock, 5 Ves. 654, is to this effect : The testator, by will, devised her 
undivided moiety of her Berkshire estate to M., and afterwards, by agreement with her 
coparcener, contracted to divide their joint interest, and to allot the Berkshire estate to 
K. This was held .by Lord Loughborough to be a revocation of that part of the devise, 
and the agreement was decreed to be specifically performed. The principle was, that 
where an estate is devised specifically, and is afterwards sold by the testator by a 
contract executory, the estate goes from the devisee, and the devise is revoked by the 
contract of sale. So again, in Williams v. Owen, 2 Vezey, 601, the Master of the Bolls 
observed, that if a man articles for the sale of an estate that he has devised, it is, 
without doubt, a revocation in equity, though it is not at law, because a court of law* 
cannot look at the articles with a view to a specific performance. In Cotter v. Layer, 
2 P. Wms. 622, Lord King held, that though a covenant or articles to sell or settle the* 
land devised, do not at law revoke a will ; yet, if entered into for a valuable considera- 
tion, they amount in equity to a conveyance and a revocation. He laid down the 
same rule in Eider v. Wager, 2 P. Wms. 332, and Lord Loughborough, in Bridges v. 
Duchess of Chandos, admitted the force and authority of these two cases. So again 
in the ease of Mayer v. Gowland, Dickens, 563, the testator devised a certain farm, and 
then entered into a contract with the defendant to sell it to him for £1,500. It 
was insisted by the residuary legatees, that the testator meant by the contract, 
to turn the land into personalty, and that as such they were entitled to it. In 
this opinion, Lord Thurlow concurred, and held that the agreement ought to be 
carried into execution, and the money arising from the sale to be considered as per- 
sonal estate- 

These cases are entirely sufficient to show the settlement of the rule, that a valid 
contract, for the sale of lands devised, is as much a revocation of the will in equity, 
as a legal conveyance of them would be at law. The estate, from the time of the 
contract, is considered as the real estate of the vendee. We may, therefore, safely 
conclude, that, as to the lands described in the contracts of sale, set forth in the 
answer, and which contracts were subsisting at the testator's death, there was a rev- 
ocation of the devise ; and the interest in these lands, and in the contracts relating 
to them, belongs to the residuary legatees under the will. The more embarrassing 
question arises as to the lot No. 17, mentioned in the pleadings. This lot was part 
of the lands devised to the plaintiff, and>the testator afterwards contracted to sell it 
to S. C. Baldwin, and received part of the purchase-money. At a subsequent period, 
this contract of sale was rescinded by the parties to it, and the money paid was 
credited to Baldwin on another transaction, and the testator continued seised of the 
lot to his death. 

" The question is, whether this contract of sale was also a revocation of ihe will pro 
tanto, seeing that it was afterwards rescinded. 

" In Bonnet v. Lord Tankerville, 19 Vesey, 170, 178, a devise was held to be revoked 
by a contract of sale, though that contract was rescinded after the testator's death. 
But in that case, the contract was subsisting when the testator died, and this makes a 
material distinction between that and the present case. 

10* 



114 Title XXXVIII. Devise. Ch. VI. s. 69. 

vised, which fails of taking effect for want of some formality in 

" Inoperative conveyances, which have failed for want of completion, or from inca- 
pacity in the grantee to take, have, in some cases, been held a revocation of a will at 
law. Lord Kenyan observed, in Shove v. Pincke, 5 Term Rep. 124, that a convey- 
ance, inadequate for the purpose intended, would amount, in point of law, to a rev- 
ocation, if it showed an intention to revoke the will. A covenant to make a feoff- 
ment^ and a letter of attorney to make livery, but no livery made,. were held, in . 
Montague v. Jeffereys, 1 Eol. Abr. 615, to be a revocation of a will as being acts 
inconsistent with it ; and Lord Hardvnche and Lord Ch. J. Aluanley, sitting in equity, 
have approved of this construction, as those acts imported an intention in the tes- 
tator to revoke. 3 Atk. 73, 803 ; 7 "Vesey', 370, 371, 373. So a bargain and sale with- 
out enrolment, or a conveyance upon a consideration which happened to fail, or a will 
not executed according to the statute, or a disability in the grantee to take, are admit- 
ted by the same authorities to amount to a revocation. The great question, says Lord 
Alvanley, has been, whether inchoate acts, inconsistent, shall revoke ; but in all the 
• cases it is admitted, that if the act gives power to destroy the will, though the act is 
not done, yet the will is revoked. 

* " The contract to sell lot No. 17, was binding upon the testator, and was, at the 
time, a revocation of the will as to that lot, for it was a conveyance in equity, and 
equity would have enforced it. The estate was, in contemplation of equity, the 
property of the vendee, and the purchase-money the property of the vendor. The 
will was revoked because the estate was sold, and because the testator, by that con- 
tract, intended to revoke it ; and why should a subsequent recovery of the estate, by 
rescinding the contract, restore the will in equity, without republication, when the 
taking back of the same estate, by a reconveyance, after a conveyance at law, will not 
do it ? The rules as to revocation of wills are the same' in law and equity ; and as Lord 
Loughborough observed, in Bridges v. Duchess of Chandos, the creation and transmission 
of estates must be governed by the same law in both Courts. If a will be once abso- 
lutely revoked, whether directly or impliedly, it must be gone forever. It cannot he 
restored without due republication.' 

" Without wishing to lose myself in the labyrinth of cases which have arisen on 
the subject of revocations, and especially after the discouraging picture which Lord 
Ch. J. Eyre gives of many of the cases, as being ' a heap of heterogeneous instances, 
depending upon different principles, and huddled together without discrimination,' I 
will look only into a few leading authorities, for the illustration of a strict principle of 
law, that if the testator afterwards conveys away the estate entirely, though he takes it 
back again by the same instrument, or by a declaration of uses, it is a revocation, lie- 
cause he once parted with the estate. Either an intention to revoke or an alteration of 
the estate without such intention, will work a* revocation. 

" In Dister v. Dister, 3 Lev. 108, the C. B. held a devise revoked by a recovery 
to the uses of the devisor, because the estate was altered, though the testator took 
back the. old use. And the same principle was admitted by, the C. B. in Darley v. 
Darley, 3 Wils. 6, because, said Ch. J. Wilmot, it must be presumed the testator 
intended to alter his will ; yet, in that case, the testator suffered a recovery, which was 
absurd and useless, and clearly bad, and without any reasonable meaning to be deduced 
from it ; and Lord Camden, on the strength of the opinion of the C. B., held the re- 
covery a revocation of the devise. See Lord Loughborough's remarks on this case, in 2 
Vesey, 430. 

" The opinion of Ch. J. Trevor, in Arthur v. Bockenham, Fitzgib. 240, is a strong 



• Title XXXVIII. Devise. Ch. VI. s. 69. 115 

the instrument, 1 has been held to operate as a revocation of the 



authority on the point, and it is frequently cited as unexceptionably sound. The 
law, he says, is so very strict, that it requires the interest, which the testator had 
when he made the will, should continue and be the very same interest, and remain 
unaltered to his death ; and the least alteration of that interest is a revocation of the 
will. He referred to the case in which a tenant in tail, who has an estate of inher- 
itance, as such tenant, and could dispose of the absolute inheritance and fee hy fine 
and recovery, devises the same, and then suffers a recovery to himself and his heirs ; 
this was a revocation, though he was owner when ho made the will, and was no 
more afterwards, but the estate was altered, and he had another sort of fee. He 
then referred to such a case as that of Dister v: Dister, where a tenant in fee devises the 
land, and then makes a feoffment to the use of himself and his heirs. He remained 
absolute owner as before, and yet the will was held to be revoked by reason of the 
alteration. 

" In Roper r. Radcliffe, 10 Mod. Rep. 230, it was conceded by the counsel and the 
Court, that a devise to a person disabled by law from taking, was a revocation of a 
prior devise, on the ground of the intention to revoke. Lord Hardmicke, in Parsons 
v. Freeman, 3 Atk. 748, recognized the doctrine of the above cases ; and held, that 
if the testator levied a fine, or enfeoffed a stranger to his own use, it was a revoca- 
tion, though the testator was in of his old use. He admitted, that this was a pro- 
digiously strcmg instance of the severity of the rule ; and Lord Mansfield observed, 
Doug. 722, that the Earl of Lincoln's case, decided on the same principle, was 
shocking. Still it was admitted to be a rule of law, settled and to be observed. 
Lord Hardwicke went afe large into the consideration of the same subject, in Spar- 
row v. Hardcastle, 3 Atk. 798; 7 Term Eep. 4.16, n. S. C, and laid down the 
same rule. The testator, aftei*the devise, conveyed the estate, and took back a dec- 
laration of trust, which afterwards was performed, and ceased, so that ho and his 
heirs were entitled to a reconveyance. Still it was a revocation, for the estate did 
not continue in the same condition ; and any alteration, any new modelling of the 
estate after the will, was, as he observed, a revocation, except in the cases of mort- 
gages and charges on the estate for debts, which are only a revocation quoad the 
special purpose, and they are taken out of the general rule on the fact of being securi- 
ties oply. 

" In Bridges v. The Duchess of Chandos, 2 Vesey, 417, Lord Loughborough ably re- 
views the cases, and acknowledges the rule which has been stated. Bat the great case 
of Cave v. Holford, 3 Vesey, 650, (7 Term Rep. 399 ; 1 Bos. & Pull. 576, S. C.) led 
to a thorough examination of all the law on the subject, and was discussed, with infinite 
ability in the several Courts of law and equity; and it was most authoritatively settled, 
that where a testator, after the will, conveyed the estate to trustees, in trust for himself, 
in fee, till marriage, and for default of issue of the marriage, to the use of himself in 
fee, and he married and died without issue, the conveyance was a revocation of the will 
both in law and equity. The doctrine of the case is, that by a conveyance of the estate 
devised, the will is revoked, because the estate is altered, though the testator take back 
the same estate, and by the same instrument, or by a declaration of uses ; and though 
he did not intend to revoke the»will. It is revoked upon technical grounds, because tho 
estate has been altered. AndWord Hardwicke said, in Sparrow v. Hardcastle, the rule 
had been carried so far, that if the testator suffered a recovery for the very purpose of 

1 Or, by reason of incapacity in the grantee. Walton v. Walton, 7 Johns. Ch. 269. 



116 Title XXXVIII. Devise. Ch. VI. s. 69—71. 

devise. Thus, a feoffment without livery, a bargain and sale, not 
enrolled, and a defective recovery, have been held to be revoca- 
tions of prior devises ; because such intended alienations were 
considered as proofs of an alteration of intention, (a) 

70. It was certified by the Court of King's Bench, to the 
Court of Chancery, in a modern case, that a deed, intended to 
o*perate as an appointment to uses, but not sufficient for that pur- 
pose, may have the effect of revoking a will, if the party appear 

to have had that intention, (b) f * 

95 * * 71. An alienation to a trustee, without any intention of 

departing with the estate, and though the alienor take 
back the old use, has been held to operate as a revocation of a 
prior devise; because, in such a case, there is an interruption of 
the seisin ; and also because a presumption, in favor of the heir 
at law, arises from the alienation, that there was an alteration in 
the intention of the testator. 1 

(o) 1 Roll. Ab. 615. 3 Atk. 73, 803. Doe v. B. of Llandaff, 2 New. Rep. 491. 
(5) Shove v. Pinoke, 5 Term R. 124, 310. 



confirming the will, it was still a revocation, for there was. not u continuance of the 
same unaltered interest. 

We see, then, that either a change of the estate, or an act, though nugatory in itself, 
yet demonstrating an intention to revoke the will, will amount to a revocation; and 
that the exception to the general rule, making an alteration of the estate a revocation, 
is the case of a conveyance for the special purpose of payment of debts." See 7 Johns. 
Ch. E. 267-273. 

[t The case of Shove v. Pincke can scarcely be deemed an authority for the point 
for which it is cited by the author ; since there, although the deed was not valid as an 
appointment, it was held good either as a grant or covenant to stand seised, and therefore 
it was of course a revocation. See per Lord Eldon, in ex parte the Earl of Ilchester, 
7 Ves. 374. The author's proposition, s. 69, is however established by the cases cited 
in the margin.] 

1 The rule,, that by an alienation in fee, after a devise, the devise is revoked at law, 
even though the testator takes bach the old use, is regarded as a settled rule of the law of 
property, irrespective of any presumed intention to revoke, in the mind of the testator, 
and imperative in its operation. So it was treated by Rooke, J., whose view was 
approved by a majority of the Judges, in the great case of Cave v. Holford, 3 Ves. 
650 ; the decision being made solely on the ground of an interruption of the seisin. On 
the other hand, Eyre, C. J., argued in the same case, with great foree of reasoning, in 
support of the proposition, that where the testator died seised of his old estate, which 
he had when he made the will, and had made no demonstration of an intention to re- 
voke it, the will was not revoked. Chancellor KentfRgards the rule as "hard and 
unreasonable," but has now become one of the settled rules of property, by force of re- 
peated decisions, and on the mere strength of authority. 4 Kent, Comm. 529,530; 
7 Johns. 367-273 ; Supra, § 68, note. 



Title XXXVIII. Devise. Ch. VI. s. 72—74. 117 

72. Thus, it was determined in Michaelmas, 44 Edw. III., that 
where a man, seised in fee of lands, devisable by custom, made 
his will, he having then two sons, and upon their death, aliened 
the land in fee, and took back an estate in fee ; the will was 
thereby revoked, (a) 

73. Lord Lincoln made his will, by which he devised all his 
estates to the person to whom his title was to descend ; after- 
wards conceiving that he should m^rry a certain lady, though the 
lady never had any such intention, he conveyed his estate by 
lease and release to trustees, in consideration of his intended 
marriage, to the use of himself and his heirs, until the marriage 
should take effect, and then, as to part, for his intended wife, &c. 
No marriage ever took place, and Lord Lincoln died, (b) 

It was decreed that this conveyance operated as a revocation 
of the will : and the decree was affirmed in the House of Lords. 
It is said that the Judges were equally divided in this case ; and 
that all the Lords voted. Lord Mansfield has said of it, — " The 
absurdity of Lord Lincoln's case is shocking ; however, it is now 
law." (c) i 

74. A by his will, dated in 1708, gave several pecuniary and 
specific legacies, and then gave all his real and personal estate to 

(a) Dyer, 143 b. (4) Lincoln's case, 1 Ab. Eq. 411. Stow. Pari. Ca. 154. 

(c) 3 Atk. 803. 4 Burr. 1940. 2 Doug. 695, 722. 



But it is to be observed, that the decisions on which this rule is supported, are them- 
selves founded on the Statute of Wills, which makes the seisin of the testator, and its 
uninterrupted continuance, essential to a valid devise. But it has already been stated 
that, in very many of the American States, the necessity of such seisin is done away by 
statutes. See supra, ch. 3, § 8, 37, notes. How far these statutes have gone towards 
abrogating the rule, is a question which is not known to have been decided ; but which 
will not fail to engage the attention of the diligent and careful student. [See Brown 
u. Brown, 16 Barb. 569.] 

1 Of this case, Mr. Just. Buller said : — " It has happened that in many subsequent 
cases that determination has been lamented ; but it was never denied. Perhaps the 
misfortune there was, that the deed was not attacked on the ground of insanity." 3 
Ves. 659. 

Where one, owning a remainder in fee "simple, devised all his estates ; and afterwards 
joined the tenant for life in mortgaging the land in fee ; the proviso for redemption 
being, that, on payment of the money, the mortgagee should convey the land to the 
person entitled to the reversion for the time being, and his heirs and assigns, or to such 
person as he or they should appoint ; it was held that this did not amount to a revoca- 
tion of the will. Youde v. Jones, 9 Jur. 911 ; 14 Sim. 162, S. C. 



118 Title XXXVIII. Devise. Ch. VI. s. 74—78 . 



B, on condition he took the name of A. Afterwards A, together 
with J. S. his trustee, by lease and release, conveyed several ma- 
nors to trustees and their heirs, to the use of himself for life, and 
that the trustees and their heirs should execute such conveyances 
thereof as A by writing under his hand and seal, or by his last 
will, should appoint. The testator died without altering or re- 
voking his said will, or making any appointment touching his 

real estate, (a) + 

96 * * It was decreed, that the lease and release was a revo- 

cation of the will ; and the decree was affirmed in the 
House of Lords. 

75. An alienation made for the sole purpose of strengthening, 
or giving effect to a previous devise, has notwithstanding been 
held to operate as a revocation of it, on account of the interrupt 
tion of the seisin; for in such a case, no alteration of intention 
could be presumed. 1 f 

76. A bastard made his will, and thereby devised a certain 
manor. He afterwards made a feoffment of the same manor, to 
the use of such persons, and for such estates, as he had -already 
declared by his will. It was adjudged, that this feoffment was a 
revocation of the will, (b) 

77. A person covenanted by indenture to levy a fine, to the 
use of such persons as he should nominate by his will. He then 
made a will, b'y which he devised the lands to certain persons ; 
and afterwards levied a fine in pursuance of the covenant. It 
was agreed, that the fine operated as a revocation of the will ; 
but in this and the preceding case,'the will was held to be a good 
declaration of the uses of the fine, (c) 

78. Where a person, who had devised his lands, afterwards 

(a) Pollen v. Huband, 1 Cas. Eq. Abr. 412. 7 Bro. Pari. Ca. 433. 

(ft) Hussey's case, Moo. 789. 1 Boll. Ab. 614. 

(c) Lutwich v. Mitton, 1 Boll. Ab. 614. Hicks v. Mors, Amb. 215. Tit. 32, c. 12. 



1 Qucere; and see supra, § 71, note. 

[t In Hodges v. Green, 4 Kuss. 28. Sir John Leach, M. R. decided, that a convey- 
ance of an estate to trustees, upon trust to sell for payment of a mortgage thereon, and 
other schedule debts, was not a revocation of a prior will, because it declared that the 
surplus moneys arising from the 1 sale should be personal estate of the testator, and that 
was not a purpose beyond the payment of debts, so as to revoke the will, but was a 
mere expression of that which would be a consequence of law from the execution of 
the trust.] 



Title XXXVIII. Devise. Ch. VI. s. 78—81. 119 

levied a fine, or suffered a recovery of them, these acts operated 
as a revocation of the devise. 1 

79. A tenant in tail made his will, whereby he devised certain 
lands ; and afterwards, by bargain and sale enrolled, conveyed 
the same to a tenant to the precipe, against whom a common 
recovery was suffered, with voucher of the tenant in tail, to the 
use of himself in fee.^ It was determined, that the recovery 
operated as a revocation of the will, (a) 

80. Sir H. Turner being seised of a considerable estate in tail 
male, with remainder to himself in fee, and having no son, made 
his will, by which he devised his estate to his nephew, (who 
was not his heir,) in strict settlement. Afterwards Sir H. Tur- 
ner suffered a common recovery of this estate, to the use of him- 
self in fee. Upon the back of the will was written, " this is my 
will;" and afterwards, "but not now so intended." (b) 

*It was determined, that the recovery, and the declara- * 97 
tion of the uses of it to Sir H. Turner and his heirs, being 
subsequent to the will, and inconsistent therewith, as declaring 
the estates should go to his heir at law, and not to his devisee, 
operated as a revocation of the will. And it was observed, that 
a common recovery, as it is a solemn conveyance upon record, 
and stronger than a feoffment, must needs be a revocation : the 
recovery being suffered by the tenant in tail, plainly gains an ab- 
solute fee, derived out of the estate tail, and which fee was never 
dtvised ; consequently it must be even stronger than the case 
where a man, having lands, devises them, and afterwards makes 
a feoffment of them ; though to the use of himself and his heirs, 
and though this be the old use, yet according to the several cases 
in 1 Rol. Ab. 614/ it is a revocation ; and the case of Dister v. 
Dister was cited as exactly in point. 

81. It was agreed by marriage articles, that the wife's estate, 
whereof she was tenant in tail, should be conveyed to the hus- 
band in fee. Subsequent to the marriage, the husband devised 
those lands, and afterwards the husband and wife suffered a re- 
covery of them, to such uses and for such estates as they should 

(a) Dister v. Dister, 3 Lev. 108. (6) Marwood v. Turner, 3 P. Wins. 163. 

1 See, as to the effect of fines and recoveries, Parker v. Biscoe, 3 Moore, 24 ; Dar- 
ley v. Lang-worthy, 3 Bro. P. C. 361 : Doc c. Bp. of Llandaff, 2 New E. 491 ; Locke 
v . Foote, 5 Sim. 618. 



120 Title XXXVIII. Devise. Ch. VI s. 81—82. 

jointly appoint ; and in default of appointment, to the use of the 
husband and his heirs. No appointment was made, (a) 

It was decreed by Lord Hardwicke, that the will was revoked 
by the recovery. And he said, (b) — " It is admitted that if the 
testator had been seised in fee, at the date of the will, and had 
afterwards suffered a recovery, that would have been a revoca- 
tion ; and yet the objection would have held equally there, of 
the alteration being made only for the particular purpose to en- 
able him and his wife to dispose, without any other form of 
conveyance. There are a great variety of cases, and nice and 
artificial distinctions, upon the favor to the heir : one rule, how- 
ever, is certain, that if a man is seised in fee, and disposes by 
will, and afterwards makes a conveyance, taking back a new es- 
tate, that is a revocation. So if he devises the land, and levies 
a fine without any use declared ; this is a revocation ; and yet 
he takes back the old use unaltered ; which is a prodigious strong 
case." T 

82. Vincent Darley, being seised of several real estates for his 

life, with the reversion in fee in himself, made his will, by which 

he devised them to Mr. Langworthy in strict settlement ; 

98* some *years after, the testator suffered a common recovery 

of the estates devised, to the use of himself in fee. (c) 

The question was, whether the will was revoked by the recov- 
ery. The Court of Chancery ordered a case to be stated for the 
opinion of the Court of Common Pleas, upon the following 
question : " Whether the deed executed, and the recovery suffered 
by Vincent Darley, was a revocation of the will." 

The case having been fully argued before that Court, Lord 
Ch. J. Wilmot said, there were a- great many determinations 
touching trte revocation of wills, and very nice artificial distinc- 
tions were made in favor of heirs at law. It seemed to be clear, 
from the latest determinations upon the subject, that if a man 
seised in fee, made his will, and devised ; and afterwards con- 
veyed by recovery, fine, feoffment, release, &c, and took back 
the same or a different estate, it should amount to a revocation. 
The reason was, that it must be presumed he intended to alter 
his will. 



(a) Parsons v. Freeman, 3 Atk. 741. (5) MS. Eep. 

(c) Darley v. Darley, 6 Amb, 653. 3 Wils. E. 6. See also Lane v. Wilkins, 10 East, 241. 



Title XXXVIII. Devise. Ch. VI. s. 82—86. 121 

The Court certified their opinion, that the deeds executed and 
the recovery suffered by Vincent Darley, were a revocation of 
his will. Lord Camden decreed accordingly ; and the House of 
Lords affirmed the decree, as to this point, (a) 

83. In the case of Selwyn v. Selwyn, which has been stated 
in a former chapter, the wiH, though made before • the return-day 
of the writ of entry, on which the recovery was suffered, and 
to which it had relation, was held not to be revoked by the re- 
covery ; because the bargain and sale and recovery ought to be 
considered as one transaction, and as constituting one whole, by 
reference to its inception. (6) 

84. It was held by the Court of Common Pleas, upon a motion 
for a new trial, that where a testator levied a fine to such uses 
as he should appoint, by deed or will, a prior will was thereby 
revoked, (c) 

85. The doctrine of presumptive and constructive revocations 
appears to have been carried much too far ; and has been disap- 
proved of by the ablest Judges of modern times. Lord Mans- 
field has observed, that constructive revocations, contrary to the 
intention of the testator, ought not to be indulged; and that 
some overstrained resolutions of that sort had brought a scandal 
on the law ; and on another occasion he said, — " All revocations 
which are not agreeable to the intention of the testator, are 
•founded on artificial and absurd reasoning." It is how- *99 
ever now fully settled, that wherever a person who has 
devised an estate, afterwards makes any alteration in it, by any 
mode of conveyance whatever, inconsistent with the preceding 
devise ; or by which the estate devised becomes in any respect 
different from what it was before ; such an alteration will operate 
as a revocation of the prior devise, (d) 

86. By articles made in 1777, previous to marriage, the Duke 
of Chandos covenanted, that he would, within six months after 
the marriage, cause several freehold and copyhold estates to be 
conveyed to him, to the intent that the duchess might become 
entitled to dower thereout ; and also that he Would, within twelve 
months after the marriage, and after such conveyances, settle the 
said estates, subject to dower, to the use of himself for life, re- 
fa) 3 Bro. Pari. Ca. 53. (b) Ante, u. 3, $ 25, tit. 36. See also 2 Now Rep. 401. 
ic) Doeu. Dilnot, 2 New Rep. 401. 

(d) 3 Burr. 1491. S 2 Doug. R. 722. 2 Hen. Black. R. 523. 
VOL. III. 11 



122 Title XXXVIII. Devise. Ch. VI. s. 86. 

mainder to trustees to preserve contingent remainders; remainder, 
after the decease of the duke and duchess, to other trustees for a 
term of years, to raise portions for younger children ; remainder 
to the first and other sons of the marriage in tail male ; remainder 
to the right heirs of the duke. The marriage took effect ; and 
the duke by his will, dated January 9th, 1780, confirmed the 
articles, and devised all the estates which he had agreed to settle 
in case of failure of issue male of the marriage, to the duchess 
for life ; remainder to his daughters, as tenants in common in 
tail, with several remainders over, (a) 

Afterwards (in October, 1780,) the duke executed a settlement, 
purporting to be in pursuance and performance of the articles, by 
which he granted and released all the estates, comprised in the 
articles, to trustees, to the use of himself for life ; remainder, as 
to part, to the use of the duchess for life ; and as to another part, 
for securing a jointure of £2,000 a-year to the duchess ; remain- 
der to trustees for. a term of 1000 years, to secure portions for 
younger children, nearly as in the articles ; remainder to the first 
and other sons of the marriage, remainder to the duke in fee. 
Lord Loughborough said, that a court of equity could not adopt 
different rules respecting the transmission of estates, from those 
established at law. That the settlement, being in many points 
inconsistent with the articles, and also with the will, must be 
deemed a revocation of the will. 

On an appeal to the House of Lords, the following reasons 
were assigned in support of the appellant : I. Because the 
100* settlement, * being executed in consequence of the arti- 
cles, by which the duke was bound to make a conveyance 
of his estates, ought not to be considered as a distinct and inde- 
pendent deed, but as forming part of the same conveyance with 
the articles, which bore date antecedent to the will ; and there- 
fore could not be deemed a revocation of it. II. Because, by 
expressly referring to the articles, and professing to carry them 
into effect, the settlement clearly marked and defined the object 
which the parties had in view, and excluded every possible idea 
of an intention to revoke the will ; and though the rule were 
generally true, that any conveyance after the execution of a will, 
whereby the nature of the estate which the devisor had in him 

(a) Brydges «\ Cbandos, 2 Ves. 417. 



Title XXXVIII. Devise. Ch. VI. s. 86. 123 

at the time of making the will was altered, operated as a revoca- 
tion of such prior will ; yet it was submitted, that such rule did 
not apply at all to a case circumstanced as the present ; or if it 
did, that there were many exceptions to that rule, grounded on 
the nature and tendency of the conveyance, with reference to 
the intention of the testator, manifested thereby. If the princi- 
ple of revocation was founded merely on the alteration in the 
plight of the estate, it could admit of npne of those exceptions 
which had actually been adopted in the case of conveyances in 
fee, by way of mortgage, or in trust for payment of debts or 
particular charges subsequent to the execution of a will, and 
which had been held only a revocation pro tanto. These de- 
pended entirely on the nature and design of such conveyances ; 
and if so, the settlement in question appeared to fall directly 
within the same principle. III. Because the duke's will referred 
in express terms to the articles, and disposed only of such estates 
and interests as were not bound thereby ; and it seemed unrea- 
sonable to say, that a deed for carrying those articles into effect, 
and which the duke must have had in contemplation at the time 
of making his will, should totally revoke the dispositions con- 
tained in that will ; although made with reference to ulterior 
objects, not within the articles or deed, (a) 

In support of the decree, the following were some of the rea- 
sons assigned. Because the testator, after making his will, con- 
veyed and departed with the whole of the estate which he had, 
in the lands comprised in those deeds, at the time of making his 
will, and passed that estate to others in fee, declaring the use io 
himself for life, with limitations thereon, and limiting the 
ultimate * use to himself in fee simple ; and it had been * 101 
settled, by a series of decisions, which could not be im- 
peached without destroying all security of title, that the convey- 
ance of the entire fee simple of lands to uses, was a revocation of 
a prior will of such lands ; and that the use limited to the grantor 
himself by such conveyance would not pass by such will, with- 
out a republication thereof, but would descend to his heir at law ; 
except in certain cases, bounded by certain rules. 

It had been contended, that though the settlement was a revo- 
cation at law, it was not so in equity : for that in equity the 

(a) 7 Bro. Pari. Ca. 605. 



124 Title XXXVIII. Devise. Ch. VI. s. 86—87. 

devisees had a right to make the heir a trustee for them. Lord 
Hardwicke, in Parsons v. Freeman, (a) had said, and the rule 
was unquestionably established, that the same conveyance which 
would be a revocation of a devise of a legal estate, would be 
equally a revocation of a devise of an equitable estate ; and that 
it would be very dangerous to property to hold it otherwise. If, 
therefore, the conveyance in question was a revocation of the 
devise at law, what equity could there be to set up the revoked 
legal devise, against the heir, in favor of the devisee ; or for de- 
claring the heir a trustee for the devisee ; which would be in effect 
to convert what was a legal devise into an equitable devise, 
merely because it was revoked ; and therefore of no force as a 
legal devise. The decree was affirmed. 

87. Sir Thomas Cave, by articles dated December 13th, 1790, 
entered into previous to his marriage with Lady Lucy Sherrard, 
agreed to make a provision for his intended wife, and the issue 
of the marriage, out of certain estates. Sir Thomas Cave made 
his will, dated March 13th, 1791, by which he devised his estates, 
in case he should die without issue of his body to his uncle, 
the Rev. Charles Cave, and his issue male, in strict settlement. 
Afterwards, by deeds of lease and release, dated in May, 1791, 
reciting the intended marriage, and that Sir T. C. had agreed, 
upon the treaty for the said marriage, to settle a jointure upon 
Lady Lucy, in consideration of the marriage and of the fortune 
of Lady Lucy, he conveyed the estates in question to trustees 
and their heirs, to the use of himself for life, remainder to the 
intent that Lady Lucy might receive an annuity of .£600 a year 

for life, as a jointure, and in bar of dower ; remainder to 
102 * the use of the first and other sons of the marriage, in *tail 

male ; remainder to Sir T. C, his heirs and assigns forever. 
And by other deeds of lease and release, Sir T. Cave conveyed 
other estates to trustees and their heirs, to the intent that Lady 
Lucy might receive an additional jointure, with a limitation to 
trustees for 500 years, for better securing it, with remainder to 
the use of Sir T. Cave in fee. The marriage took place, and in 
about six months, Sir T. Cave died, without issue ; leaving Sarah 
Otway his heir at law. A question arose in a suit of chancery, 
between the devisee and the heir at law of Sir T. Cave, whether 

(o) 3 Atk. 748. 



• Title XXXVIII. Devise. Ch. VI. s. 87. 125 

the first and second deeds of lease and release operated as a 
revocation of the will, (a) 

By consent, the parties were ordered to proceed to a trial at 
the bar of the Court of Common Pleas, where a special verdict 
was found, stating the above facts. The Judges delivered their 
opinions seriatim on the special verdict, and were unanimous, 
that the first deeds of lease and release operated as a revocation 
of the will, as to the lands comprised therein. And three of the 
Judges thought the second deeds of lease and release had the 
same effect ; but Lord Chief Justice Eyre was of opinion, that 
they did not operate as a revocation, (b) 

A writ of error was brought upon this judgment, in the Court 
of King's Bench, when Lord Kenyon began by observing, that 
the marriage settlement executing the articles, and on which the 
principal question depended, limited the reversion in fee to Sir 
T. C, his heirs and assigns forever ; therefore the whole use 
was disposed of some way or other. He then stated the cases 
of Parsons v. Freeman, (c) and Sparrow v. Hardcastle ; (d) and 
observed, that the doctrine which Lord Hardwicke wished to es- 
tablish, was this ; that any alteration of the estate, or conveyance 
to uses, after making the will, though the old use remained, which 
was the case here, was in law a revocation of the will. That 
supposing in this case Sir T. C. had merely made a conveyance 
to the use of himself and his heirs forever, that would undoubt- 
edly have operated as a revocation of his will ; then could the 
other uses to which he conveyed the estate make any alteration ? 
He said it had been supposed, in the course of the argument, that 
the case of Brydges v. Chandos (e) proceeded on equitable prin- 
ciples ; but he knew that the Lord Chancellor meant by that 
decision to confirm the doctrine established by Lord Hardwicke. 
He concluded by saying, " I do not enter into the reasons upon 
which all the cases have been determined ; because the 
best rule *is stare decisis. But my opinion is formed *103 
upon the authority of all the cases, from the time of Lord 
Rolle. Such were the opinions of Lord Trevor, Lord Hardwicke, 
and Lord Mansfield ; the latter of whom, though finding fault 
with former decisions, thought himself fettered by the authori- 

(o) Goodtitle v. Otway, 7 Term E. 399. (6) Vide 1 Bos. & Pull. 576. 

(c) Ante, § 81. (d) Ante, § 60. (e) Ante, § 86. 

11* 



126 Title XXXVIII. Devise. Ch. VI. s. 87— 91. # 

ties. I take it therefore that the law of the land is now clearly 
and indisputably' fixed, if at any time it can be fixed ; that where 
the whole estate is conveyed away to uses, though the ultimate 
reversion of it comes back again to the grantor, by the same 
instrument, it operates as a revocation of a prior will. That 
being the law, I am bound, how unfortunate soever it may be 
in this case, to give my opinion in favor of the defendant ; and 
consequently the judgment of the Court of C. B. must be 
affirmed." 

The cause coming on again in the Court of Chancery, upon 
the equity reserved, the Court was clearly of opinion, that the 
will was revoked in equity, as well as at law, and decreed ac- 
cordingly. And on an appeal to the House of Lords, the decree 
was affirmed, (a) 

88. It was resolved in a modern case, that a devise was re- 
voked by an exchange; though the land after the death of the 
devisor, was restored to his heir, under an arrangement, in con- 
sequence of a defect discovered in the title of the other party to 
the exchange, (b) 

89. In the case of a revocation by the execution of a convey- 
ance of lands, subsequent to a devise of them, parol evidence is 
not admissible to prove that the testator meant his will should 
xemain in force, and unrevoked by the subsequent conveyance. 

90. In Goodtitle v. Otway, the plaintiff went into evidence, in 
the Court of Chancery, of the testator's conversations with his 
lady and the attorney who prepared all the instruments, to show 
the motives for making the will ; and that the testator had no 
intention to revoke it ; and after the marriage referred to it as 
his will. But the Lord Chancellor was clearly of opinion, that 
the parol evidence, being evidence of a republication, if any thing, 
could not be received. That if the deed did not affect the will 
at law, it was out of the question : if it did, he could not set up 
the will again by parol evidence, (c) 

91. Upon the trial at bar of the above case, in the 
104 * Court of * Common Pleas, the same evidence was offered ; 
but the Court refused to admit it. (d) 

{a) 3 Ves. 682. [See also Vawser v. Jeffrey, 16 Ves. 519. 7 Bro. P. C. 503. S. C. 3 
Buss. 479. (Rawlins m. Burgis, 2 Ves. & B. 382. Hodges i). Green, 4 Euss. 28.] 

(*) Att.-Gen. v. Vigor, 8 Ves. 256. (c) 2 Ves. 606. (d) 2 H. "Black. 816. 



Title XXXVIII. Devise. Ch. VI. s. 91—93. 127 

Lord Chief Justice Eyre said, it was manifest from the open- 
ing, that it was intended to be insisted on, that by the necessary 
operation of the conveyances used, Sir T. C. lost his old estate, 
upon which the will operated, and took a new one. If so, the 
consequence was, that though there were the clearest demonstra- 
tion that it was his intent that the will should operate upon it, 
the law said it should not ; and by that law they were bound. 
If this was a case of that kind, it was a case that would disap- 
point the will, even admitting the clearest intention that it should 
not. All evidence therefore, of intent, seemed to him entirely 
foreign to the question : all such evidence therefore must be 
rejected ; and the question tried upon its true legal grounds. 

Mr. J. Buller observed, that in order to determine whether the 
evidence was or was not admissible, the Court was to consider 
to whom it was to be applied. If the question was, whether the 
testator was incapacitated, or the instructions given were duly 
followed, the evidence would be admissible. But here the end 
proposed by it was, to show that the deeds should have a differ- 
ent construction from that which the words imported. That 
there was a great difference between cases which depended on 
circumstances, and those which depended on the solemn acts 
done by the party himself ; and that distinction supported the 
case of Brady v. Cubitt. (a) There was no act, in that case, done 
by the testator, importing that he meant to revoke his will, or 
change it in any respect ; but changes having happened in his 
family by marriage, and the birth of a child, there was a pre- 
sumption of revocation ; and therefore it was to answer that pre- 
sumption, that the Court received parol evidence. But he could 
not find, from any one case quoted at the bar, that the Court had 
received parol evidence, in the case of a deed executed by the 
party himself, with a view of altering the construction of the in- 
strument. 

92. A conveyance obtained by fraud will not operate as a revo- 
cation of a prior devise ; because, when such a conveyance is set 
aside, it is considered as a mere nullity, and of as little effect as 
if it had never been made. 

93. Francis Hawes, being seised of a reversion in fee, subject 
to the life-interest of his father, made his will, and thereby 

(o) Ante, § 50. 1 (Doug. 31.) 



128 Title XXXVIII. Devise. Ch. VI. s. 93—97. 

105* disposed 'of it. The testator's father afterwards ob- 
tained from him a conveyance of his reversion, by fraud- 
The Court of Chancery, having directed the deed to be delivered 
up to be cancelled, said it was no deed ; and therefore could not 
operate as a revocation of the will. (<z)f 

94. A mere alteration of the quality of an estate, without any 
intention of varying the quantity of the interest, or the disposing 
power of the owner, will not operate as a revocation of .a preced- 
ing devise. 

95. Thus, where a man, having feoffees to his use, before the 
statute 27 Hen. VIII., devised the lands to another, and after- 
wards the feoffees made a feoffment of the land to the use of the 
devisor ; it was agreed that this feoffment did not operate as a 
revocation of the devise ; for after the feoffment, the devisor had 
the same use as before, (b) 

96. It follows from this case, that the acquisition of the legal 
estate alone, will not operate as a revocation of a devise. Thus, 
Lord Hardwicke has said, that where a man has an equitable 
interest in fee in an estate, and afterwards takes a conveyance of 
the legal estate, to the same uses, this is no revocation, (c) 

97. G. Jones, by articles, in consideration of marriage, cove- 
nanted to convey all his real estates to trustees, to the use of 
himself for life, remainder in trust to secure an annuity to his 
intended wife for life, remainder to the first and other sons of 
the marriage in tail, remainder to the daughters in the same 
manner, remainder to his own right heirs. Some time after, 
G. Jones devised all his real estates upon condition that he 
should have no issue, to his wife, for life, with several remainders 
over. Afterwards, by indentures of lease and release, G. Jones, 
in pursuance of the said articles, and in consideration of the said 
marriage, bargained, sold, and confirmed to trustees and their. 

(a) Hawes v. Wyatt, 3 Bro. C. C. 156. Vide 6 Ves. 215. 8 Ves. 283. 2 Cox, E. 263. 
Wright v. Littler, 3 Burr. 1244. 
(6) 1 Roll, Ab. 616, pi. 3. Sng. Pow. 155, and note. Ed. 5. (e) 3 Atk. 749. 



[t Neither is a void conveyance a revocation; Mathews v. Venables, 2 Bing. 136. 
See also ^Eilbeek u. Wood, 1 Russ. 564. But a deed executed under circumstances 
which render it void in equity and not at law, is a revocation of a prior will. Simpson 
„. Walker, 5 Sim. 1.1 



Title XXXVIII. Devise. Ch. VI. s. 97. 129 

heirs, all his said real estates, to hold to certain uses and 
trusts, which were exactly the same as those expressed in the . 
articles, (a) 

Sir R. P. Arden, M. R., said, the simple question was, whether 
a man, having an equitable estate, devising it, and taking 
to * himself afterwards nothing more than the legal inter- * 106 
est in that, in which he before had the equitable, has by , 
that simple act, going no further, not modifying it, nor passing to 
the devisee any thing more than what was before^ given, revoked 
his will. He did think that had been decided, both in principle 
and in precedent ; but he was not sure one of the counsel was not 
right in saying, it had not been exactly decided. But cases seemed 
to have been taken for granted, at least, which completely proved 
it. It was stated by Lord Hardwicke, in Parsons v. Freeman, 
and repeated by him in Sparrow v. Hardcastle, in which this 
question, as to the effect a subsequent deed would have upon a 
will, was much discussed, that taking the legal estate, after a 
devise of the equitable interest, was no revocation ; and it was 
admitted by Lord Loughborough in Brydges v. Chandos. Lord 
Hardwicke not only admitted, but seemed to consider it as de- 
cided and acted upon ; if so, the case was determined, for this 
was nothing more than taking the legal estate exactly in the 
same manner as he was before seised of the equity. In Parsons 
v. Freeman, which he had looked into very attentively, Lord 
Hardwicke established this principle, that wherever the estate 
is modified in a manner different from that in which it stood at 
the time of making the will, there is a revocation : but wherever 
the testator remains with the same estate and interest exactly, 
and disposable by the same means, without any fresh modifica- 
tion, there is no revocation, and the testator will be taken to 
have passed to the devisee the same interest he acquired, though 
the one may be legal, the other equitable. (&) f 

Upon the whole, he considered, that the devisor had nothing 
but the reversion in fee ; that his acquiring the legal interest 

(a) Williams v. Owens, 2 Ves. 595, 
(ft) Ante, § 81. 3 Atk. 798. 



[t In the cases of Brydges v. Chandos, and Goodtitle v. Otway, the conveyances 
did not pursue the articles, but went beyond them. — Note to former edition.] 



130 Title XXXVIII. Devise. Ch. VI. s. 97. 

made no difference ; and that the person, to whom the estate 
was conveyed, was a. trustee for the purposes of the will, (a) 1 

(a) Vide Harmood v. Oglander, 6 Ves. 199. 



i The opinion of the Master of the Rolls, (afterwards Ld. Alvanley,) in Williams 
v. Owens, was subsequently explained by him, and the doctrine more largely ex- 
pounded, in Harmood v. Oglander. His observations are too important to be over- 
looked by the student, in this connection. After stating one of the objections raised 
in the case then in judgment, he said,—;" This brings before the Court a question, 
that has of late been so much agitated, and upon which so much argument has been 
used ; and, as I believe my opinion in the case of Williams v. Owens has been in 
some degree misunderstood, I am very anxious to explain it ; and it bears such an 
analogy to the present case, that in stating my opinion of that case, and comparing 
it with the present case, I shall show the ground of my opinion upon this case also. 
I observe in the report of Cave v. Holford, it is said by the then Attorney-General, 
that it is impossible to reconcile Williams u. Owens with Brydges v. The Duchess of 
Chandos. There is this distinction between them : Williams v. Owens is, I take it, 
a strict literal execution of the articles, by which the party was bound, and nothing 
more : the deed in the other case differs from them. But whether they are reconcilable, 
or not, it may be proper to state the ground of that case ; as some expressions in the 
Report are certainly inaccurate. At the end of the judgment I am stated to have said, 
' that the testator's acquiring the legal interest makes no difference.' I should have 
said, and the distinction was marked by Mr. Romilly in the argument, that the testator ■ 
having modelled his legal interest in the estate in conformity to the articles makes no 
difference. It is certainly an inaccurate expression to say, that the testator acquired 
the legal estate. It never was out of him. 

" It is unnecessary to go over the doctrine of revocation ; as it has been ably 
stated by the Judges of the Court of Common Pleas in Goodtitle v. Otway. Lentirely 
agree with the three Judges, who held the deed a revocation of the will as to all 
the estates: but I think with Mr. Justice Butter, the articles ought not to have 
formed any part of the special verdict. The question in a Court of Law is simply 
whether the legal devise is revoked by the deed. All other questions, as to the 
partial purpose, &c. are merely equitable questions. I perfectly agree with all the 
determinations, that have taken place in Courts of Law on questions of revocation, 
except Luther v. Kidby ; which with great deference to the authority, by which it 
was decided, I cannot but consider as anomalous ; and I perceive from the Report 
of Goodtitle v. Otway, that Mr. Justice Heath looks upon that case in the same 
light that I do. The question then is, in what cases a Court of Equity has deter- 
mined, that a deed clearly revoking a will at law is not in equity a revocation, or • 
is only a partial revocation ; and I take it to be fully established now, that, if the 
deed is only for the partial purpose of introducing a particular charge or incum- 
brance, and does not affect the interest of the testator beyond that purpose, it is only 
a partial revocation in equity; and though the devisees under the will take no es- 
tate, and the estate is vested in the mortgagee or the trustee for a pai-ticular pur- 
pose, and, after that purpose shall be answered, the use is declared to be for the tes- 
tator and his heirs, yet a Court of Equity being satisfied, that there was no other 
object but the partial one, will hold the party a trustee, not for the heir, but for the 
devisees. Lord Hardwicke expressly laid it down, that if a man devises an equitable 
estate, and afterwards takes a conveyance of the legal estate to him and his heirs, 



Title XXXVIII. Devise. Ch. VI. s. 98. 131 

98. It h^s been determined, upon the same principle, that 
where a person devised a copyhold estate, and was after- 
wards admitted to it, this did not operate as a revocation of the 
devise. 



though the consequence will be, that the estate will descend upon the heir, the heir will 
be only a trustee for the devisees. 

"Now, to apply these principles to the case of Williams v. Owens and to this case. 
In Williams v. Owens it is admitted, that if the testator had died without having 
conveyed according to the articles, his heir at law, to whom the legal estate would 
have descended, would have been a trustee for the uses of the articles, and, after 
they were satisfied, for the devisees. It is likewise admitted, that the testator 
would have been liable to be called upon to convey according to the articles. What 
did he convey by the will t At Law, the whole legal estate : in Equity, only the 
remainder in fee. In Equity he remained seised as before ; and the conveyance 
being only for a particular purpose, and in conformity to the obligation he was un- 
der, when he must be supposed to act under the articles, it would be a perversion 
of the principles, upon which these cases are determined, to consider it a revocation in 
Equity. 

" This is upon the supposition, that Lord Hardwicke is right in holding, that, if a 
man devises an equitable estate, and afterwards takes a conveyance to him and his 
heirs, he docs not revoke the will. It is admitted, that if the testator, instead of 
covenanting that he- would convey according to the articles, had before the date 
of the will conveyed to a trustee upon those trus% and after the will had called 
upon the trustee to convey upon the trusts, the will would not have been revoked : 
yet without question the legal estate would have descended to the heir. The Court 
would have controlled the law ; and would have held the heir to be a trustee for the 
devisees. What distinction in common sense can there be between the two cases 1 
In Williams v. Owens the testator, instead of conveying according to the articles 
before the will, gave the estate subject to the articles by the will ; and then, as he was 
bound to do, conveyed the legal estate so as to leave himself at law what he had 
before in equity, the remainder in fee. It is said, that the legal estate passed by the 
will : and that a conveyance of the legal estate after a devise is a revocation at law ; 
and why should equity control the law'? The reason, why a deed revokes a will, is, 
that a Court of Law cannot look at the articles. But a Court of Equity attends to 
both ; considers the interest at the date of the will and of the deed ; and upon all the 
circumstances determines, whether that, which without the intervention of circum- 
stances, (by which the interest in equity is distinct from the legal interest) must be 
held a revocation of the beneficial as well as the legal interest, shall in equity be no 
revocation of the will, so far as it affects the actual interest in a Court of Equity. 

" To give some examples. A, seised in fee, devises to B in fee, charged with the 
payment of debts ; then makes a mortgage in fee ; then pays that off; and takes back 
the estate from the mortgagee to himself and his heirs. This would fall directly 
within Lord Eardwicke's rule ; that taking the legal estate from » trustee is not a 
revocation. By the mortgage there is a complete revocation at law ; but a Court of 
Equity says, he still remains possessed of the estate in equity, subject to the debt 
secured by the mortgage. Therefore the mortgagee shall be a trustee for the devisee : 
the mode taken for the security of the debt not being regarded in equity ; and the 



132 Title XXXVIII. Devise. Ch. VI. s. 99. 

99. B. North, being seised in fee of a copyhold estate, surren- 
dered the same, in consideration of marriage, to the use of him- 



devisor being complete owner, as before, in eqnity, subject only to the mortgage 
Put the case, not of a mortgage ; for it may be said, that in equity it is only a chattel 
interest ; and that he is seised of his former estate : suppose, after the devise, a con- 
veyance of the whole fee, upon trust to sell and pay debts; the surplus, if any, for 
the testator and his executors ; and the remainder of the lands unsold, for him and 
his heirs. It has been determined by Lord Thurlow and other great Judges, to be no 
revocation in equity. Suppose afterwards, the debts being fully paid, the trustee is 
called upon by the testator, and conveys to the testator and his heirs : that would be 
clearly no revocation. Now in this case Equity takes upon it to make the heir, upon 
whom the estate descends by virtue of a conveyance, by which his ancestor acquired an 
entirely new estate, » trustee for the devisee under a will made prior to his acquisition 
of that legal estate. That, I admit, is a strong. case; and perhaps it would have been 
as well for a Court of Equity to have refused to assist the devisee against the heir m 
such a case ; and yet unquestionably the principle is settled and established, that the 
heir is a trustee for the devisee. I admit the difference in the case of a will and a 
conveyance afterwards for a partial purpose, the testator then dying without taking 
back the legal estate ; for a Court of Equity has only to decide, to whom the bene- 
ficial interest belongs. A Court of Equity declares, he did not mean to revoke; and 
therefore holds him a trustee for the devisee, and not for the heir ; and directs a con- 
veyance. 

" Consider then, what circumstances make a revocation, which is clearly a revoca- 
tion at law, no revocation in eqi§ty. What is a revocation in equity 1 They are fully 
stated in Cave v. Holf'ord, and in the note of Mr. Serjeant Williams in his very valua- 
ble edition of Saunders's Reports. He there expresses a doubt as to what was said' by 
me as to the operation of a fine ; where there is no deed to declare the uses ; and I 
think, he is justified in that doubt. The result of these cases is, that any alteration of 
the estate, or a new estate taken, is at law a revocation ; whether for a partial or a gen- 
eral purpose ; to which circumstance a Court of Law cannot advert ; neither ought 
they to take any notice of articles or covenants, charging the estate in equity. They 
have only to look at the will and the subsequent deed ; and say whether at law the old 
estate is changed and a new estate acquired. 

" Consider, in what cases Courts of Equity have controlled the law ; not upon the 
ground of a partial purpose only, nor upon the act being done without an intention to 
revoke ; for that will not authorize a Court of Equity to interfere. A Court of Equity 
has never interfered with the operation of a will and a subsequent deed, where' the 
testator at the time of the will had the same estate at law and in equity. But where 
his beneficial interest is different from his legal one, or, where the equitable interest 
is devised, and the legal estate is not affected, and the testator calls upon the trustee 
for his legal estate, though the legal estate descends to the heir, yet a Court of Equity 
says, as the whole beneficial interest passed by the devise, and the trustee, if the 
devisor had died without calling for the legal estate, would have been a trustee for the 
devisee, the mere circumstance of the devisor's clothing himself with the legal estate 
shall not operate as a revocation of the devise of the beneficial interest. Therefore 
they hold the heir a trustee for the uses of the will. This is expressly laid down in 
Parsons v. Ereeman, and is not denied in any case, that I am aware of. In that case, 
it is to be observed, the testator had no estate at all at law, upon which his will could 



Title XXXVIII. Devise. Ch. VI. s. 99. 133 

self and: his heirs, till the solemnization of the marriage ; 
then to * his own use for life, remainder to his intended * 107 
wife for life, remainder to the children of the marriage, 
remainder to the said B. North in fee. The marriage took effect, 



operate. Therefore the conveyance from the trustees was a completely new estate. 
Suppose a man seised in fee makes his will, and then conveys^his estate to a trustee for 
the payment of debts : the law has nothing to do with the purpose of the deed ; but 
can only judge of the legal operation of the deed. But equity says, the estate is not" 
taken out of the testator substantially : he has the same estate in equity as before ; and 
though the mode amounts to a revocation, yet subject to those debts he remains in 
equity master of the estate, as before ; and the will continued to operate upon his 
interest. In fact they consider him still owner in equity ; and therefore, if he calls for 
the legal estate, by which at law he becomes the purchaser of a new estate, not affected 
by. the will, yet equity holds the heir to be a trustee for the devisees, just as if the 
legal estate had remained in the trustee. 

" This doctrine is applicable also to this case. The principles are, first, that equity 
will never control the law ; except, where the testator has at the date of the will a 
different interest in equity from that which be has at law; and devises that bene- 
ficial interest ; and then only takes the legal estate, without any new modification or 
alteration : secondly, where he has the complete legal and beneficial estate at the date 
of the will ; and afterwards devests himself of the legal estate ; but still remains 
owner of the equitable interest ; as in the case of a mortgage or a conveyance for 
payment of debts : if he dies without taking a conveyance of the legal estatfe, his 
equitable interest still continues ; and if he has taken back the legal estate, that 
alone will not revoke the devise of the equitable interest. These rules are clearly 
deducible from the series of determinations of great Judges in equity. To apply 
them to Williams v. Owens, — If, instead of articles, the testator had before marriage 
conveyed to a trustee, in trust for himself till the marriage, then for himself for life ; 
remainder to the issue in tail ; remainder to himself in fee ; then made the will ; 
and then had called upon the trustee to convey ; and he had conveyed, it is admit- 
ted, that would be a complete revocation at law ; but as clearly it would not be a revo- 
cation in equity ; and the heir must convey to the uses of the will. In principle that 
does not differ from the case of Williams v. Owens. The devisor was bound by the 
articles ; and he might have been compelled to convey accordingly. That would not 
revoke his will. Then it is strange to say, if the conveyance was taken from a trustee, 
it would be no revocation, but, if according to his obligation he himself conveyed to- 
the same uses, it would be a revocation. No one can deny, that articles are in equity 
equal to a conveyance. No one can deny, that he remained a trustee to the uses of 
the articles ; and must have conveyed accordingly, if he had been called upon. Hav- 
ing the whole legal estate in himself, for the legal estate was entirely unaffected, instead 
of being under the necessity of calling upon a trustee to convey, he conveys himself 
according to the articles. Is that to be a revocation, when if he had happened to have 
conveyed to a trustee, instead of entering into articles, a conveyance from the trustee 
would not have had that effect ? Such a determination, if it does not reverse the 
determinations, which have hitherto .prevailed in equity, will in my opinion overturn 
every principle, upon which they have been decided." See 6 Ves. 218-224; Liv- 
ingston v. Livingston, 3 Johns., Ch. 148, 155, 156 ; Hughes v. Hughes, 2 Munf. 209. 

VOL. III. 12 



134 Title XXXVIII. Devise. Ch. VI. *. 99—103. 

and the next year, 1725, B. North surrendered the premises to 
the use of his will. In 1743, B. North made his will, by which 
he devised his copyhold estates in remainder and reversion to his 
wife in fee. In the year 1751, B. North was admited to the uses 
of the marriage settlement, (a) 

It was resolved by the Court of King's Bench, that this admis- 
sion did not operate as a revocation of the will, and that it passed 
the reversion in feA 

100. In consequence of this doctrine, it has also been deter- 
mined, that the mere change of a trustee does not operate as a 
revocation of a preceding devise. 

101. W. Watts devised all his real estates to trustees upon 
certain trusts ; he afterwards made a codicil, reciting that, since 
the publication of his will, he had contracted for the purchase of 
certain lands ; and thereby directed the trustees and executors 
named in his will to pay the purchase-money ; and that the said 
purchased premises should be conveyed to the same uses as he 
had declared concerning his other estates. Afterwards the tes- 
tator himself completed the purchase, and took a conveyance of 
the estates to trustees, in trust for himself and his heirs. The 
question was, whether the conveyance of the newly-purchased 
lands to the trustees, subsequent to the codicil, was not a revo- 
cation ; the testator, at the time of making the codicil, having 
only a trust estate, and the vendor being a trustee for him ; so 
that, before his death, the legal estate was conveyed to other 
trustees, (b) 

Lord Bathurst decreed there was no revocation ; relying much 
on the general proposition laid* down by Lord Hardwicke in 
Parsons v. Freeman, (c) 

102. Sir J. Gibbon, having mortgaged his estates in fee, made 
his will, by which he devised them. Afterwards he paid off the 
mortgage, and took a conveyance of the estate to a trustee for 
himself. The Court of King's Bench held, that this being 
no more than a bare change of a trustee, the will was not 
revoked, (d) 

103. A partition of an estate between tenants in common does 
not operate as a revocation of a prior devise, made by one 

(a) Roe v. Griffits, 4 Burr. 1952. S. C. 1 Bl. E. 605. 

(6) Watts v. Fullarton, 2 Doug. 718. (c) Aftle, 1/ 81. , (d) Doe v. Pott, 2 Doug. 709'. 



Title XXXVIII. Devise. Ch. VI. s. 103—107. 135 

* of the tenants, of his share ; even though such a partition * 108 
be corroborated by a fine. 1 

104. One Temple and two others were tenants in common ; 
Temple made his will in writing of his third part ; afterwards, 
by indenture and fine, a partition was made between the tenants 
in common ; and if this partition was a revocation of the will, 
was the question, (a) 

It seemed to all the barons, Montague, Littleton, Thurland, 
and Bertie, that it was not any revocation. But judgment was 
not given, because the plaintiff obtained leave to discontinue his 
action, (b) 

105. Dorothy Kirby, by her will, taking notice that she was 
tenant in common with another person, devised her moiety to 
trustees. She afterwards by indenture between her and the 
other tenant in common, covenanted to levy a fine of all the 
premises, and declared the uses thereof, as to certain farms, &c, 
being one moiety, to Dorothy Kirby and her heirs ; and as to the 
other farms, &c, being the other moiety, to the other tenant in 
common and her heirs ; and a fine was levied accordingly. A 
question having arisen, whether this deed and fine operated as a 
revocation of the will, the Lord Chancellor referred it to the 
Judges of the Court of King's Bench ; who certified their opinion, 
that they were not a revocation ; with which the Chancellor 
agreed, and decreed accordingly, (c) 

106. But where a partition is made, and a fine is levied, not 
merely to establish the partition, but also for another purpose, 
and the estate in the land is altered ; there it will operate as a 
revocation. 

107. Henry and Robert Tickner being seised of an estate in 
gavelkind, Robert devised his undivided moiety to his wife in 
fee ; afterwards by deed of partition and fine, all the gavelkind 
estate which Robert had devised, was allotted entirely to Robert ; 

(a) Risley». Baltinglass, T. Raym. 240. (J) Webb v. Temple, 1 Freem. 542. 

(c) Luther v. Kirby, 8 Vin. Ab. 148. 3 P. Wjns. 169. 



1 A tenant in common devised his moiety of the estate, and then made partition ; 
and thereupon the estate was conveyed to a trustee, as to one part, to the use of the 
testator in fee ; and a mortgage term, created by the co-tenant, in his moiety, was 
assigned to attend the inheritance. And it was held, that this was no revocation of the 
will. Barton v. Croxall, Taml. 164. [See Duffel v. Barton, 4 Harring. 290.] 



136 Title XXXVIII. Devise. Ch. VI. s. 107—110. 

to such uses as he should appoint, and in default of appointment, 
to him in fee. Lord Ch. J. Lee, after mature deliberation, held 
this transaction to be a revocation of the will, (a) 

108. In May, 1809, R. agreed to purchase an estate ; by his 
will, dated in July, 1809, and duly attested, he gave all his prop- 
erty to his wife ; by deeds of lease and release, dated in Sep- 
tember, 1809, the vendor, by the direction of R., conveyed the 

estate to S., to such uses as E. should, by deed, executed 
109 * in the * presence of two witnesses, or by will, appoint ; 

subject thereto, to the use of R. for his life ; and after the 
determination of that estate, to the use of S., his heirs and as- 
signs, during the life of R., in trust for R., and to prevent dower, 
with remainder to the use of R., his heirs and assigns. R. died 
without having republished his will. It was held by Sir Thomas 
Plumer, V. C, that the conveyance was a revocation of the will, 
in consequence of the modification of the estate by the intro- 
duction of a power of appointment, and the interposition of a 
trustee. (6)f 

109. M. having verbally agreed to purchase an estate, and be- 
ing in possession of it, devised all his estates ; a conveyance was 
subsequently made to and to the use of M. and a trustee and their 
heirs and assigns, but as to the estate of the trustee, in trust for 
M., his heirs and assigns ; it was held by Sir J. Leach, V. C, that 
the subsequent conveyance was not such as was incident to the 
unqualified equitable fee, but made an alteration in the quality of 
the estate, and was therefore a revocation, (c) 

110. A conveyance, to have the effect of revoking a prior de- 
vise, must be of the whole estate ; and coextensive with the dis- 
position made by the will. For if it be but of a part of the 
estate, it affects the will no further than that part goes. ' If it is 
of a particular estate of interest only, it will not operate as a 
revocation of the rest. And it has been determined, upon this 
ground, that a lease, made of lands already devisedby'will, only 

(a) Ticknor v. Ticknor, cited 3 Atk. 742. Vide 7 Ves. 564. 8 Ves. 281. 10 Ves. 249. 

(b) Rawlins v. Burgis, 2 Ves. & Bea. 382. (c) Ward v. Moore, 4 Madd. 368. 



[t The better opinion seems to be, that if, in the preceding case, the contract had 
stipulated that the estate should be conveyed to the purchaser in fee, or to such uses as 
he should appoint, the conveyance to uses to bar dower would not have operated as a 
revocation.] 



Title XXXVIII. Devise. Ch. VI. s. 110—113. 137 

operates as a partial revocation, or a revocation pro tanto of such 
will, (a) J 

111. A person devised his lands to his eldest son, and after- 
wards made a lease of them, for thirty years, to his second son, 
to begin after his death. It was resolved, that this lease only 
operated as a partial revocation of the will, quoad the lease ; for 
both might well stand together. But if the lease had been 
made to the devisee, then it would have been a revocation ; 
because the estates would have been inconsistent with one 
another, (b) 

112. A person devised copyholds to A for life, with different 
remainders over, and having surrendered them to the use of his 
will, afterwards, in contemplation of marriage, conveyed 

his freehold * and copyhold estates to trustees and their * 110 
heirs, to secure a jointure to his intended wife, and subject 
to a term of ninety-nine years for that purpose, to the use of him-/ 
self in fee ; and surrendered his copyholds to these uses. The 
Court of K. B. certified to the Court of Chancery that this did 
not amount to a total revocation of the will, but that the devisee 
took the copyhold subject to the charge created by the settle- 
ment, (c) 

113. Although a mortgage in fee, made after the lands mort- 
gaged were devised, be a revocation of such devise at law, 2 yet 
in equity it is only a revocation pro tanto ; and the equity will 
p'ass to the devisee, notwithstanding the mortgage happens to 
be made to the devisee himself. The case of Harkness v. Bay- 

- (a) (Carter v. Thomas, 4 Greenl. 341. Graves v. Sheldon, 2 Chipm. 74. Parkhill v. Park- 
hill, Brayt. 239. McRainy v. Clarke, 2 Tayl. 278.) 

(b) Hodgkinsonne v. Whood, Cro. Car. 23. 1 Vera. 97. Coke ». Bullock, Cro. Jao. 49. 
Parker v. Lamb, 3 Bro. Pari. Ca. 12. 

(c) Vawser v. Jeffrey, 3 Barn. & Aid. 462. Johnson v. Johnson, 1 Or. & Mee. 140 ; (3 Tyr. 
73, S. C.) Hall v. Dunch, 1 Vern. 329. 3 Atk. 805. 2 P. Wms. 33. (Brain v. Brain, 6 Madd. 
221. Youde v. Jones, S Jur. 911.) 



1 [A gift of real estate to a son by a father in his lifetime and after the date of his 
will, is not an ademption pro tanto of a pecuniary legacy in the same will, the gift and 
bequest not being ejusdem generis. Dugan v. Eollins, 4 Md. Ch. Decis. 139. A con- 
veyance, made subsequently to a devise of land, is not a revocation or satisfaction of a 
devise of other lands to the grantee. If it be of a portion of the same land, it is a re- 
vocation pro tanto. Arthur v. Arthur, 10 Barb. Sup. Ct. 9 ; Rose v. Kose, 7 lb. 174.] 

2 Whether, in the United States, the mortgage would be a revocation at law, except 
pro tanto, quosre. See ante, tit. 15, ch. 2, § 1, note ; Supra, ch. 3, §^8, 37, notes. 

12* 



138 Title XXXVIII. Devise. Ch. VI. s. 113—117. 

ley (a) has been supposed to establish a different conclusion, but 
that misapprehension is now removed by the authority of Baxter 
v. Dyer, (b) 

114. It has been determined, that a conveyance in fee to 
trustees, for raising money to pay debts, being made for a par- 
ticular purpose, will only operate as a revocation pro tanto of a 
prior devise, so far as relates to the payment of the debts, but no 
further, (c) 

115. It is observable, that in the above cases, the whole fee 
simple being limited to the use of the mortgagee or trustee, the 
grantor parted with his whole estate at law, without taking back 
any legal estate or use to himself ; and therefore, at law, nothing 
remained upon which the will could operate, or which could de- 
scend to the heir. In these cases, therefore, nothing being left 
to descend at law, the question has been, to whom the equitable 
interest should belong ; and the courts of equity have held these 
cases to be exceptions from the general rule of law, which they 
ordinarily follow, on these grounds, as stated by Lord Harkwicke, 
namely, that although the conveyance is of the fee simple of the 
land, yet in the consideration of a court of equity, the interest 
conveyed is merely a personal interest, having no quality of a 
real estate ; and that therefore the testator is to be deemed, in 
equity, to have created only a chattel interest, as if he had 
created a term for years, which would have been a revocation 
pro tanto only at law. All that remained to the grantor was a 
right of redemption, and that right of redemption did not pass 
by the conveyance, (d) 

116. But where a person, after having made his will, 
111 * executed * a conveyance in trust for payment of debts in 
a schedule, and instead 'of declaring the uses to himself 
in fee, after payment of the debts, he declared that the trustees 
should convey to such uses and purposes as he by deed or will 
should appoint; and for default of appointment, to himself in 
fee. This was held to be a revocation, (e) 

117. [The bankruptcy of the testator is not a revocation of a 

(a) Prec. in Cha. 514. (J) 6 y es- 656 . 

(c) Vernon v. Jones, Pree. in Cha. 32. ' Ogle v. Cooke, 2 Bro. C. C. 592. (Jones v. Hart- 
ley, 2 Whart. 103. Livingston v. Livingston, 3 Johns. Ch. 155.) 

(d) 7 Bro. Pari. Ca. 517. 3 Atk. 805. Temple v. Chandos, 3 Ves. 685. 
<e) Kenyon v. Sutton, 2 Ves. 600. (And see Hodges v. Green, i Russ.'28.) 



Title XXXVIII. Devise. Ch: VI. s. 117—121. 139 

prior will beyond the purpose of paying his creditors. The bank- 
rupt laws only take the property out of the bankrupt for that 
partial purpose, and from the moment the debts are paid, the 
assignees are mere trustees for the bankrupt. 

118. Thus in the case of Charman v. Charman, the testator 
devised his real and personal estate upon trust, after payment of 
his debts, for his wife for life, and after her decease for his chil- 
dren, equally. Subsequently to the execution of his will, the 
testator became bankrupt. Out of his personal estate, and by 
sale of part of his real estate, the creditors, who proved under the 
commission, were paid ; and th^re remained a surplus of freehold, 
leasehold, and other personal estate, not required for the pay- 
ment of his debts. No reconveyance was ever made to the 
bankrupt, who became of unsound mind, and so continued until 
his death ; he never having passed any examination, nor was any 
application made for a supersedeas of the commission. The tes- 
tator's eldest son and heir claimed the real estate, insisting that 
the bankruptcy was a revocation of the will. But Sir W. Grant, 
M. E,., decided in favor of the will, for the reasons above sta- 
ted.] (a) 

119. With respect to leasehold estates, it has been long settled 
that a surrender of a lease for lives and the taking a new lease, 
will operate as a revocation of a prior devise of it. For the tes- 
tator, by the surrender, devests himself of his whole estate in the 
old lease, and by the renewal acquires a new estate. 

120. Sir H. Marwood, being seised of an estate for three lives, 
held of the Archbishop of York, made his will, by which he 
devised this lease. He afterwards surrendered it and took a new 
lease. It was resolved, that this surrender and renewal operated 
as a revocation of the devise of the lease ; for by the surrender 
the testator had put all out of him, had devested himself of the 
whole interest ; so that there being nothing left for the devise to 
work upon, the will must fall ; and the new purchase be- 
ing of a * freehold descendible, could not pass by a will *112 
made before such purchase, (b) 

121. Where a person has an estate pour autre vie, at the time 
of making his will, and afterwards purchases the inheritance, it is 
a revocation of any devise of the estate pour autre vie. (c) 

(a) 14 Ves. 680. (6) Marwood v. Turner, 3 P. Wms. 163. 2 Atk. 597. 

(c) Galton v. Hancock, 2 Atk. 430. 



140 Title XXXVIII. Devise. Ch. VI. s. 122—126. 

122. Although a term for years, acquired after the making of 
a will, passes by it ; yet if a testator bequeathes a term for years, 
of which he is then possessed, and afterwards surrenders it, and 
takes a new term, this will operate as a revocation, or ademption 
of the bequest ; and the new term will be considered as part of 
the personal estate, (a) 

123. A person devised two college leases for years to his 
mother, upon certain trusts. The testator afterwards surren- 
dered the two college leases, and accepted two new leases of 
the same premises ; but the last was not sealed with the college 
seal till after the death of the testator, (b) 

Lord Hardwicke decreed, that the bequest of the first lease 
was revoked ; but that of the second lease was not. 

124. If, however, the words of the will show the testator's 
intention to dispose of all terms for years, whereof he may die 
possessed, a renewed term will pass ; for a term for years being 
only a chattel, there is no necessity for a possession at the time 
when a will of it is made, or of a continuance of such possession 
till the testator's death, (c) 

125. A person devised in the following words : — " As to all 
and singular my leasehold estate, goods, chattels, and personal 
estate whatsoever, I give the same to my daughter." The tes- 
tator, after making his will, renewed a lease for years with the 
Dean and Chapter of Windsor. Lord Hardwicke said, that what 
the testator had done in this case was not a revocation. Sup- 
pose the testator had purchased a new lease, would not that have 
passed ? Why, then, should not a new term in a lease equally 
pass ? (d) 

126. A person devised to S. S. her leasehold garden, &c, for 
the term of his life, and after his decease to his children. After 
the publication of the will, the testatrix surrendered the lease, 
and took a new one. The question was, whether the bequest 
was revoked! (e) 

Sir W. Grant, M. R., said the question was, whether a specific 

devise of a leasehold estate was affected by a renewal of 

113* *the lease, subsequent to the will. The ground upon 

which, in many cases, it had been held that renewed 

(a) Ante, c. 3. 

(6) Abney v. Miller, 2 Atk. 593. Rudstone v. Anderson, 2 Vez. 418. Hone v. Medcraft, 
1 Bro. C. C. 261. (c) Carte v. Carte, 3 Atk. 174. 

(d) Stirling v. Lydiard, 3 Atk. 199. (e) Slatter v. Noton, 16 Ves. 197. 



Title XXXVIII. Devise. Ch. VI. s. 126—127. 141 

leases did not pass to the specific devisee was, that the thing 
given no longer existed. But as a testator might' undoubtedly 
dispose of the future, as well as his present interest in a chattel 
real, it was a question of intention, what the subject of dispo- 
sition was ; whether only the interest which he had at the time 
of executing the will, or all the interest, though subsequently ' 
acquired, which he might have at his death, in the leasehold 
premises. That intention was to be collected from the words 
used by the testator to express it ; there were no words prospec- 
tive or future to take in any interest which the testatrix might 
subsequently acquire in the leasehold : and therefore the renewal 
operated as a revocation of the bequest ; and decreed accord- 
ingly, (a) 

127. In the case of Darley v. Darley, the testator devised a 
term for years, in trust that the same might go unto and be 
enjoyed by the owner and possessor of his freehold estate there- 
by devised. The Court of Chancery decreed, that the bequest 
of the leasehold was revoked by the revocation of the devise of 
the freehold. But this was reversed by the House of Lords, (b) 

(a) James v. Dean, 11 Ves. 383. (b) Ante, § 82, tit. 13, t. 2. 3 Bro. Pari. Ca. 365. 



142 



Sect. I. 


Nature and effect of. 


2. 


Reexecution is a Republica- 




tion. 


3. 


And also a Codicil. 


12. 


Unless confined to Lands de- 




vised by the Will. 



CHAP. VII. 

REPUBLICATION OF DEVISES. 

Sect. 15. Cancelling a second Will re- 
publishes the first. 

18. But a Will once cancelled 
must be reexecuted. 

20. A surrender of a Copyholdis 
a Republication. 

Section 1. As a will or devise of lands is ambulatory during 
the life of the testator, and may be revoked by him at any time 
before his death ; so it may be republished; 1 and a republication 
of a will has a twofold effect ; first, to give it all the effect of a 
will made at the time of its republication ; and secondly, to set 
up and reestablish a will that has been revoked. 

2. The first mode of republishing a will is by a reexecution of 
it ; and although it was held, before the Statute of Frauds, that 
any words, importing an intention to republish a will, amounted 
to a republication ; yet it is now settled, that an express republi- 
cation of a will must be attended with the same circumstances as 
are necessary to its original publication ; for otherwise the Statute 
of Frauds would be evaded, (a) 2 

3. It was formerly held that, since the Statute of Frauds, 
there could be no devise of lands by an implied republication ; 
for that the paper, in which the devise was contained, ought to be 
reexecuted. But it was afterwards determined, that a codicil 
duly attested, and annexed to a will, or referring to a will, should 

(a) Martin v. Savage, 1 Vez. 440. (Infra, § 18, note. Jackson v. Potter, 9 Johns. 312. 
Jackson v. Holloway, 7 Johns. 394.) 

1 If a will be executed under such circumstances of the testator as to render it in- 
operative and void ; as, if it be made under undue influence ; O'Neal v. Farr, 1 Rich- 
ard. 80; or, by a feme covert; Braham u. Burchell, 3 Addams, 243 ; or the like; it 
may be made valid and operative by a republication, after the testator has become 
capable of making a valid will ; as for example, by the removal of the undue influ- 
ence ; or becoming discovert, &c. So, where the will was revoked by implication, supra, 
ph. 6, § 44-88, it may be revived by republication. 

2 As to the mode of publication of a will, see ante, ch. 5, § 50-52, note. 



Title XXXVIII. Devise. Ch. VII. *. 3. 143 

operate as a republication of such will, so as to make it take 
effect from the execution of the codicil. By which means, lands 
purchased after the execution of the will, and before the 
* execution of the codicil, pass by the will, [if a contrary *115 
intention does not appear, for an expressed intention that 
they should pass is not required, (a) 1 

For a codicil may operate as a partial republication, or no pub- 
lication at all ; as, where it is dispositive only as to property pre- 
viously devised by the will.] (b) 2 

(a) Litton v. Falkland, 3 Eep. in Cha. 90. Lansdown's case, 10 Mod. 96. Pigott «. Wal- 
ler, 7 Ves. 98, infra, § 14. (Richardson v. Richardson, C. "VV. Dud. 184.) 

(4) Strathmore v. Bowes, 7 T. R. 482. 2 Bos. & P. 500, infra, § 13. Moneypenny v. Bris- 
tow, 2 Rus. & Myl. 117. 



1 See accordingly, Miles v. Boyden, 3 Pick. 213; Brownell v. D'Wolf, 3 Mason, 
486 ; Dunlap v. Dunlap, 4 Desau. 305, 321 ; Yarnold v. Wallis, 4 Y. & C. 160; Doe 
v. Marchant, 6 M. & G. 813 ; 7 Scott, N. B. 644 ; 8.Jur. 21 ; Doe v. Walker, 12 M. 
& W. 591 ; Goodtitle v. Meredith, 2 M. & S. 5 ; Kendall v. Kendall, 5 Munf. 272 ; 
Mooers v. White, 6 Johns. Ch. 375 ; [See also Brimmer v. Sohicr, 1 Cush. 118 ; Jack 
v. Shoenberger, 22 Penn. (10 Harris,) 416; Wickoff's Appeal, 15 lb. 281 ; Love v. 
Johnston, 12 Ired. 355 ; Murray v. Oliver, 6 Ired. Eq. 55.] 

The effect of a republication, upon the after-acquired lands of the testator, was very 
ably argued at the bar, and fully considered by the learned Judges, in Haven v. Foster, 1 4 
Pick. 534. After discussing the rule, that a devise o'peratcs only on the estate of which 
the testator was then seised, and that a republication of the will generally causes it to 
operate upon estates of which he was seised at the time of republication ; the Chief 
Justice expounded the bitter rule in these words : — "But to give a republication this 
effect, the words of the' will must be of such a character, as, if used at the date of 
republication, would include the estate in controversy. The proposition may be stated 
broadly, that to constitute a good devise, the intent to devise and the power of devis- 
ing, must concur. In general, the reason why a devise does not take effect, to pass 
after-purchased estate, is not that there is not a manifest intent to pass all the estate, 
but because, the devisee not being seised at the time, the legal power of devising is 
wanting. The question is therefore usually argued as if it was merely a question 
of power, in which the fact of intent is immaterial. But we think the true question is, 
do the intent and the power both concur'? and the legal consequence will be, to give effect 
to the devise where they do concur, but to declare it inoperative, if either is wanting. 

" If, therefore, the language of the original will be such, as, if used at the date of 
the republication it would not include the after-purchased estate in its terms or de- 
scription ; or, if the act of republication be accompanied with other provisions, indicat- 
ing that it was the intention of the testator to limit the operation of the will, as repub- 
lished, to the same estate which was given, and which would legally pass by the 
original will, then, notwithstanding such republication, the devise will not include the 
after-purchased estate ; because, although the power then exists to devise, yet the in- 
tent is wanting, and as both do not concur, the after-purchased estate does not, pass.'' 
See 14 Pick. 541. 
2 Thus, where the testator specifically devised an estate to his wife ; and after cor- 



144 Title XXXVIII. Devise. Ch. VII. *. 4—5. 

4. A person, by a codicil, executed according to the Statute of 
Frauds, reciting that he had made his will, added, — "I hereby 
ratify and confirm my said will, except in the alterations after 
mentioned." It was decreed, that the testator's signing and pub- 
lishing this codicil, in the presence of three witnesses, was a 
republication of his will, and both together made but one will ; 
and therefore that lands purchased after the execution of the 
will, and before that of a codicil, passed by the will. And upon 
an appeal to the House of Lords, the decree was affirmed, (a) 

5. A testator, by a codicil, written on the back of his will, gave 
additional legacies and annuities, ratifying and confirming his 
will ; this was attested by three witnesses in these words : ■ — 
" This will, with the several additions and alterations above, was 
signed, sealed, and republished by the testator, as his last will 
and testament, in the presence of us the subscribing witnesses." 
He afterwards made another codicil, which, though not dated, 
was agreed to have been made about four or five days before 
his death, in the presence of three witnesses, reciting that having 
in his will appointed several limitations and remainders of his 
estate, some of which were not agreeable to his present intent ; 
he revoked so much as should be found inconsistent with that ' 
codicil, ratifying and confirming the other parts which should 
not interfere therewith. The attestation of which paper was 

(a) Acherly v. Vernon, Com. E. 381. 3 Bro. PaS. Ca. 85. 

tain bequests, devised to her all his freehold, copyhold, and leasehold estates, not 
therein before otherwise disposed of ; and by a subsequent codicil, after reciting the 
devises to his wife, lie, in case she should die before him, devised all his said estates to 
trustees, upon certain trusts ; — it was held, that the will was not republished by the 
codicil, so as to pass estates purchased between the making of the will and the codicil. 
Smith v. Dearmer, 3 Y. & Jer. 278 ; and see Parker v. Biscoe, 3 Moore, 24. 

So, where the codicil revoked an annuity given by the will, and revoked the estates 
and powers given to one of the trustees, who was dead, and substituted, another in his 
stead, with a legacy to the new trustee, for his services in the trust ; it was held, that 
this did not operate to pass an estate acquired after the making of the will. Hughes 
v. Turner, 3 My. & K. 666. 

So, though a codicil, republishing a will, generally makes the will speak from the 
date of the codicil ; yet it does not operate to revive or renew a legacy, which has been 
already revoked, adeemed, or satisfied. Powys v. Mansfield, 3 My. & Cr. 359. A 
codicil merely for a particular purpose, such as changing an executor, and confirming 
the will in all other respects, does not revive a part of the will revoked by a former 
codicil. Crosbie v. Macdonald,-4 Ves. 610. And see Jowett o. Board, 12 Jur. 933; 
[Montague v. Montague, 21 Eng. Law & Eq. 575.] 



Title XXXVIII. Devise. Ch. VII. s. 5—6. 145 

" signed, sealed, published and declared by the testator as a codi- 
cil to the last will and testament." (a) 

Sir J. Strange, M. R, was of opinion that the first codicil 
amounted to a republication ; it answered the idea of a republi- 
cation, being indorsed on the will, and attested as the statute 
required; the word republished was used, which put it out of 
doubt ; but if not, it would have amounted to a republication, as 
operating by additional charge on the real estate, and then con- 
cluding by ratifying and confirming the will. And in all cases 
of republication, no precise form of words was necessary ; 
but * any, denoting the continuance of the testator's mind, * 116> 
so far as he made no alteration, would do. 1 Roll. Ab. 
617, (Z. 1.) He was also of opinion, that the second codicil' 
amounted to a republication. It was an express declaration that 
the rest of his intent, not inconsistent therewith, should continue 
and be confirmed. It might be mischievous to construe that no 
republication could be, but by the testator's taking the will in 
his hands, and republishing it by indorsement on it ; or annexing 
the codicil to the will itself. The law in favor of the power of 
devising, had dispensed with many forms of expression which 
would be absolutely necessary in other instruments ; and inferred 
republication from an act done, as in 1 Roll. Ab. 617. The per- 
son, intending to republish, might be at a distance from the will 
itself ; or might not have it in his power, by its being in another's 
custody ; and might know the substance, though he could not 
repeat the particulars. 

6. The preceding cases appear to establish the proposition, that 
where a codicil ratifies and confirms a will, it operates as a repub- 
lication of it ; and Lord Hardwicke seems to have been of this 
opinion. 1 But in some subsequent cases it was held, that a cod- 

(a) Potter v. Potter, 1 Vez. 337. 



1 The effect of the republication of a will by the codicil, under the statute 1 Vict., 
c. 26, § 34, (and similar statutory provisions in the "United States,) is the same as 
though the testator, at the date of the codicil, made a new will in the words of the will 
so republished. Winter v. Winter, 5 Hare, 306 ; llJur. 10. 

Where, on the reexecution of a will, one of the witnesses traced his name over with 
a dry pen, this was held not a subscribing, within the meaning of the Wills' Act, 
Playne v. Scriven, 13 Jur. 712. 

Where one, having by will charged all his estates with the payment of hi» debts, and, 
VOL. III. 13 



146 Title XXXVIII. Devise. Ch. VII. s. 6—8. 

icil which was not annexed to or incorporated in the will, would 
not operate as a republication of it, unless an intention to repub- 
lish plainly appeared, (a) 

7. Thus it was laid down by Lord Camden, that a codicil only 
operated as a republication of a will in two cases : I. By being 
annexed to it ; and II. By the contents showing the intention. 
And in the case cited in the margin he decreed, that the will 
was not republished by a codicil, because the codicil was not an- 
nexed to the will ; and there was nothing in the codicil which 
showed any intent in the testator to republish the will.. This 
doctrine has not, however, been assented to ; but that established 
in Archerly v. Vernon was held, in the following case, to be the 
better one. (b) 

8. A testator, by a will duly executed, devised all his estates 
in the county of Kent, that he might die seised or possessed of, 
to trustees, upon trust to sell them to pay his debts, and then to 
apply the remaining produce to various purposes. Afterwards 
he purchased other lands in Kent, subject to a mortgage, and 
covenanted in the purchase-deed to pay the mortgage-money ; 

and gave a bond to indemnify the vendor. By a codicil, 
117 * he * made some slight alterations in his will, and declared 

that he ratified and confirmed it. The codicil was begun 
upon the last sheet of the will, and finished upon another sheet, 
and was executed in the presence of two witnesses. He after- 
wards made another codicil, which he began upon the last 
sheet of the first codicil, and finished upon another sheet ; and 
which was executed in the presence of three witnesses. By the 
second codicil he revoked a bequest of five shillings a week given 
by the will to his father, and another legacy ; and instead of the 
latter, gave the legatee one moiety of two leasehold houses ; and 
concluded thus : — "In witness whereof, I the said testator have 
to this my writing, contained in this and part of the said sheet 

(o) Amb. 93. Gibson v. Montfort, 1 Vez. 492. 
(6) Att.- General v. Downing, Amb. 571. 



devised the residue to his son, afterwards purchased copyholds, which he surren- 
dered to the use of his will, and by a codicil devised them to his son in fee ; — it 
was held a republication of the will, so as to subject these copyholds to the payment 
of his debts. Rowley v. Eyton, 2 Mer. 128 ; and see Williams v. Goodtitle, 10 B. & 
C. 895. 



Title XXXVIII. Devise. Ch. VII. s. 8. 147 

of paper, which I declare to be a further codicil to my said last 
will and testament, and which is to be accepted and taken as 
part thereof, set my hand and seal ; that is to say, my hand at 
the bottom of the said preceding sheet, and my hand and seal to 
this last sheet thereof,' this 28th October, 1788, in the presence of 
three witnesses." (a) 

The question was, whether the second codicil was a republica- 
tion of the .will, so as to pass to the trustees lands purchased 
after the date of the will. 

Lord Commissioner Eyre delivered the opinion of the Court, 
and said, that upon looking into-the cases of Acherly v. Vernon, (b) 
and the Attorney- General v. Downing, (c) the question, if it 
was not to be considered as determined, and so determined 
as that the Court could hardly consider itself at liberty to review 
it, would be a question of great difficulty ; for it seemed to him 
that those two cases were in direct opposition to each other. 
The, latter was determined by a very able Judge, and having 
the former before him, which increased the difficulty. But it 
seemed to him upon the best consideration, that the former case 
was so determined, and was of such authority, that every thing 
must yield to it. The principle, that a codicil attested by three 
witnesses shall be a republication, seemed intelligible and clear, (d) 
The testator's acknowledgment of his former will, considered as 
his last will, at the execution of the codicil, if not directly ex- 
pressed in that instrument, must be implied from the nature of 
the instrument itself; because, by the nature of it, it supposes a 
former will, refers to it, and becomes part of it ; and being at- 
tested by three witnesses, his implied declaration and 
* acknowledgment seems also to be attested by three wit- * 118 
nesses. Before the statute, it was no part of the essence 
of the obligation, that the will should be reexecuted ; any thing 
that expressed the testator's intention, that the will should be 
considered as of a subsequent date, was sufficient. Since the 
statute, reexecution of the will was not necessary ; nothing more 
was required than a writing, according to the provisions of the 
statute, expressing that intent. Therefore Lord Hardwicke might 
well say, (e) he saw no great difference between the words — " I 

(a) Barnes v. Crowe, 1 Ves. 486. 4 Bro. C. C. 2. Gordon v. Ld. Reay, 6 Sim. 274, 

(b) Ante, § 4. (c) Ante, § 7. 
(if) Goodtitle v. Meredith, 2 Mau. & Sel. 5. (e) Amb, 97. 



148 Title XXXVIII. Devise. Ch. VII. s. 8. 

desire this codicil may be a part of my will ;" and the words, — 
" I republish it," which it was there admitted would have done. 
In the Attorney- General v. Downing, Lord Camden supposes a 
particular intent to republish ought to appear ; and that annexa- 
tion, or particular expressions in the codicil, would demonstrate 
that intention. If that was necessary, not only Lord Hardwicke's 
opinion could not stand, but neither could Acherly v. Vernon, for 
there was no particular intent to republish ; but the .testator [in 
the codicil] referred to his will, made alterations, and gave suffi- 
cient demonstration, that when making and executing the codicil, 
he considered the will as his will, and from that a republication 
was implied ; but it was not particularly in his thoughts, to do 
any formal act of republication. Upon considering these cases, 
he confessed he inclined to stand upon the general proposition, 
stated by Lord Hardwicke, to show that the will, in the case 
before them, was republished. This case had auxiliary circum- 
stances, which might seem to bring it within the Attorney- Gen- 
eral v. Downing ; for the testator expressly declared, by the orig- 
inal will, that he meant it to operate upon all the lands whereof 
he should die seised or possessed. If he had not actually incor- 
porated them together, he had inseparably annexed the codicil to 
the will, not by a wafer or wrapper, or any thing dehors the in- 
strument, but by what he called internal annexation ; and that 
of such a kind, that all the papers, taken together, might be con- 
sidered as published, when the codicil was executed. But he 
was afraid to rely upon these circumstances, for fear of intrench- 
ing upon the statute, by raising evidence out of circumstances in 
their nature parol ; the general ground was safer and better. 

It was decreed that the codicil operated as a republication of 
ihe will. ' 



1 Where three codicils, of different dates, were indorsed on the -will ; the first two 
referring to lands mentioned in the will, disposing of after-acquired lands according 
to directions already contained in the will, and appointing new executors, but at- 
tested by only two witnesses ; and the third, which was attested by three witnesses, 
only appointing a new executor in the place of one named in the second codicil ; it 
was held, that the last codicil, which was duly executed, and referred to the second, 
was a republication of the will and the second codicil ; but upon the question whether 
it also operated as a republication of the first codicil, to which it did not expressly 
allude, the learned Judges said there might be some doubt. Guest v. Willasey, 2 Bing. 
429 ; TJtterton v. Robins, 1 Ad. & El. 423 ; S. P. Mooers v. White, 6 Johns. Ch. 375. 



Title XXXVIII. Devise. Ch. VII. s. 9—10. J49 

*9. The doctrine, laid down by Lord Commissioner *119 
Eyre in the preceding case, was confirmed by Sir W. 
Grant, M. R. in the following one. 

10. Mr. Pigott made his will, duly attested, by which he de- 
vised all his real estates to trustees, upon several trusts. The 
testator made two codicils to his will, which only related to per- 
sonal estate, but were duly attested ; the second of which con- 
tained these words, — " To be annexed to my last will and testa- 
ment, and made part thereof, to all intents and purposes." The 
testator had purchased a real estate prior to the making of the 
second codicil ; and the question was, whether that, codicil oper- 
ated as a republication of the will, so as to pass that estate, (a) 

Sir W. Grant, M. R. after stating the preceding cases, said, the 
Lords Commissioners in Barnes v. Crowe, appeared to have held, 
that in Acherley v. Vernon, it was established, that every codicil 
duly attested ought to be held a republication, and to have 
adopted and acted upon that rule in that case ; their opinion 
seemed to be, that the codicil was incorporated in the will. The 
general proposition, referred to by Lord Commissioner Eyre, was, 
that the execution of a codicil should in all cases be an implied 
republication. Lord Commissioner Eyre stated the particular 
circumstances in that case, amounting to what he called internal 
evidence of annexation; the first codicil, which was not duly 
executed, was begun upon the last sheet of the will, and the 
codicil duly attested was begun upon the last sheet of that codi- 
cil. But Lord Commissioner Eyre inclined to think annexation 
could have no effect, and abandoned that ground, for fear of in- 
trenching upon the statute, by raising evidence out of circum- 
stances in their nature parol ; and took the general ground, as 
safer and better. Undoubtedly, therefore, that case was deter- 
mined upon that general ground. It would be impossible, with- 
out contradicting that case, which as it laid down a general rule, 
he had no disposition to do, to determine in this case against the 
republication : except the single circumstance of annexation, 
which Lord Commissioner Eyre laid out of the question, there 
was no substantial difference between that case and this. That 
afforded a certain rule ; and if he departed from that, it would 

(a) Pigott v. Waller, 7 Ves. 98. Goodtitle v. Meredith, 2 M. & S. 5. Hulme v. Heygate, 
1 Mer. 285. 

13* 



150 Title XXXVIII. Devise. Ch. VII. s. 10—13. 

only be to set every thing loose again, and not to get back to 
what he thought the better, the old rules, for then Acherly v. 
Vernon would be in the way. He was therefore disposed, 
* 120 from * the convenience of adhering to settled rules, and 
deference to former decisions, to hold the codicil a repub- 
lication. And decreed accordingly, (a) 1 

11. In a subsequent case, Sir W. Grant said, that though a 
codicil had the effect of republishing the will, and making it 
speak as at the time of the republication ; yet that where a power 

# was executed by a will, but afterwards discharged, and a new 
power created, a subsequent codicil would not, by the mere effect 
of republishing the will, be an execution of the power, (b) 

12. But where the effect of a codicil is expressly confined to the 
lands devised by the will, to which it is annexed; it does not 
operate as a republication of such will, so as to make it pass 
after-purchased lands, (c) 

13. G. Bowes devised all his freehold and copyhold lands to 
trustees, upon certain trusts ; he afterwards purchased other 
lands, and then made a codicil, whereby, after reciting that he 
had devised all his freehold and copyhold lands to trustees, he 
revoked the same, so far as related to two of the trustees named 

(a) Walpole v. Cholmondeley, 7 Term E. 138. 3 Ves. 402. 

(6) Holmes v. Coghill, 7 Ves. 499. (c) (Supra, § 3, note.) 



*In Haven v. Foster, 14 Pick. 534, the preceding cases were reviewed, andrthe 
general doctrine as to the effect of the codicil in republishing a will, was deduced from 
them by the Court in the following terms : — " We take the rule, settled by the author- 
ities, to be this, that prima facie, the execution of a codicil to a will of lands, so exe- 
cuted itself as to be capable, within the statute, of passing lands, is a republication of 
such original will ; and that this is more especially and unequivocally the case, where 
the codicil contains words declaring and confirming the original will to be in force, 
either in whole, or so far as it is not altered or revoked by the codicil itself; that the 
effect of such republication is, to make the will operate in the same manner, as if exe- 
cuted at the time of such republication, unless a special intent is manifest in the codi- ( 
cil, to restrain such operation and give it a less extensive effect ; and that where the 
will contains a residuary clause, or words of general description, sufficient to embrace 
all or any particular description of real estate, of which the devisor is seised, the effect 
of such republication is, to make the will take effect and operate upon and pass any 
real estate falling within such description, which may have been purchased by the 
testator, after the date of the will, and before the republication, unless there is a mani- 
fest intent, expressed in the codicil itself, to confine the operation of the will thus re- 
published, to the same estate which the testator held, and upon which the will operated, 
at the period of its first execution." See 14 Pick. 543, 544. 



Title XXXVIII. Devise. Ch. VII. s. 13—15. 151 

in his will, and devised his said lands, &c. to the other trustees 
upon the same trusts ; and concluded by declaring the codicil to 
be part of his will, (a) 

Upon a case sent out of chancery, for the opinion of the Court 
of King's Bench, Lord Kenyon said, it was clear that a codicil, 
confirming a will of lands in general words, would pass lands 
purchased between the making of the will and the codicil. But 
here the question was, whether it was the intention of the devi- 
sor to pass by the codicil any thing more than would have passed 
by the will itself. Now what was this case ? The testator gave 
all his real and copyhold estates to several trustees by his will, 
in words sufficiently comprehensive to carry all the estates of 
which he was then seised ; then he made a codicil not to extend 
his will, but only to revoke so much of it as vested the estates 
in some of the trustees, whom he had named in his will ; and 
then he gave his said lands, 8fC. that is,' those lands which he had 
before given by his will, to the rest of the trustees. 

The Court certified, that the codicil was not a republication of 
the will, so as to extend the operation of the will to the real 
estates purchased after the will was executed ; it extended to the 
estates devised by the will, and no further. 

* The Court of Chancery decreed accordingly. And on * 121 
an appeal to the House of Lords, the decree was affirmed, 
with the concurrence of the Judges ; Lord Thurlow dissenting, 
and holding the codicil to be a v republication. (b) 

14. In the case of Pigott v. Waller, Sir William Grant said, 
he did not conceive the decision in Strathmore v. Bowes to be 
inconsistent with that of Barnes v. Crowe. It did not follow 
from the doctrine in the latter case, that if it distinctly appeared 
upon the face of the codicil that it was not the intention to re- 
publish the will, the codicil should be held a republication. In 
Strathmore v. Bowes, the Court held, that it appeared upon the 
face of the codicil that it was not the intention to pass any other 
lands than those which were devised by the will ; it would have 
been a contradiction, therefore, to make it pass after-purchased 
lands, (c) 

15. Where a person makes a will, and afterwards revokes it, 

(a) Strathmore v. Bowes, 7 Term E. 482. (d) 2 Bos. & Pull. 600. 

(c) 1 Ves. 124. See also Moneypenny ». Bristow, 2 Bus. & Myl. 117.J 



152 Title XXXVIII. Devise. Ch. VII. s. 15—16. 

by making another will, but does not actually cancel the first 
will, the cancelling of the second will operates as a republication 
of the first. 1 

16. A person made a will in 1757, and another in 1763. The 
former was never cancelled ; the latter was cancelled by the tes- 
tator himself. Both were in the testator's custody at the time 
of his death ; the second cancelled, the first uncancelled. The 
counsel for the heir at law contended, that the second will re- 
voked the first, and being afterwards cancelled, the testator had 
died intestate ; and cited the case ex parte Hellier, 3 Atk. 798 ; 
where Sir George Lee determined, that the execution of a 
second will was a revocation of a first, though the second was 
afterwards cancelled ; and that the cancelling the second did not 
set up the first ; which was the same point, only that it was per- 
sonal property, (a) 

Lord Mansfield said, that with regard to the case ex parte 
Hellier, Mr. Atkyns only reported what passed in Chancery : 
there might be other circumstances appearing to the Ecclesiastical 

(a) Goodright v. Glazier, 4 Burr. 2512. 



1 The rule, that where the latter of two inconsistent wills is subsequently revoked, 
cancelled, or destroyed, the former will, if it remains entire, is thereby restored "to its 
original position and validity, though formerly in full force, has of late been greatly 
modified, if not wholly abandoned, in the Ecclesiastical Courts ; and the question is 
now regarded as open for decision either way, according to the circumstances. Usticke 
v. Bawden, 2 Add. 116 ; James v. Cohen, 3 Curt. 770. And see Boudinot v. Bradford, 
2 Dall. 266, 268 ; Bohanon v. Walcott, 1 How. Mis. R. 336 ; [Flintham v. Bradford, 
10 Barr. 82.] Suffering the first will to remain entire, and preserving it, and allowing 
it to survive him, have been regarded as proofs of the testator's intention that it should 
remain in force. Taylor v. Taylor, 2 Nott & McC. 482. And see 4 Kent, Comm. 
531 ; 1 Jarm. on Wills, [124] Perkins's ed.; 2 Greenl. Evid. 4 683, and cases there 
ci ted. 

In England, the question is now settled by stat. 1 Vict. c. 26, § 22, by which it is 
enacted, that no will, once revoked, shall be revived, otherwise than by the reexecution 
thereof, or by a codicil, duly executed, showing an intention to revive it. 

In the statutes of New York, it is enacted, -that "If, after the making of any will, .the 
testator shall duly make and execute a second will, the destruction, cancelling, or revo- 
cation of such second will, shall not revive the first will, unless it appear by the terms 
of such revocation that it was his intention to revive and give effect to" his first will, or 
unless, after such destruction, cancelling, or revocation, he shall duly republish his first 
will." N. Y. Rev. St. Vol. II. p. 126, $ 45, (3d ed.) A similar provision is found in 
the Revised Statutes of Ohio, 1841, ch. 129, § 42 ; and of Indiana, 1843, ch. 30, $ 30 ; 
and of Missouri, 1845, ch. 185, § 14 ; and of Arkansas, 1837, ch. 157, § 15. 



Title XXXVIII. Devise. Ch. VII. s. 16—19. 153 

z 

Court which might amount to a revocation of a will of personal 
estate. Here the intention of the testator was plain and clear. 
A will was ambulatory till the death of the testator. If the tes- 
tator let it stand till he died, it was his will ; if he did not suffer 
it to do so, it was not his will. Here he had two ; he had can- 
celled the second ; it had no effect, no operation ; it was 
*as no will at all, being cancelled before his death; but *122 
the former, which was never cancelled, stood as his will. 

Mr. Justice Yates said, a will had no operation till the death 
of the testator ; the second will never operated, it was only in- 
tentional ; the testator changed his intention and cancelled it. 
If, by making the second, the testator intended to revoke the 
former, yet that revocation was itself revokable, and he had re- 
voked it. (a) 

17. [ And notwithstanding the second will, which is cancelled, 
contains an express clause revoking the first will, such first will 
will be reestablished by cancelling the second. A contrary opin- 
ion appears to have formerly prevailed, but it is not easy to dis- 
cover any sound reason why effect should be given to that clause 
in the cancelled will which revokes the prior will, while all the 
rest of the cancelled will is rendered nugatory.] 

18. But where a person, having made a new will, cancelled the 
former one, and afterwards cancelled the latter will ; it was held 
that this did not amount to a republication of the former will ; for 
where a will was once cancelled, nothing but a reexecution of it 
would amount to a republication, (b) J 

19. N. Newenden made a will in 1759, of which he executed a 
duplicate, and gave it to another person : he made a second will 
in 1761, at which time he cancelled one of the copies of his. 
first will, by tearing off the seal. After the testator's death, both 

(a) Utterson v. Utterson, 3 Ves. & Bea. 122. 

(6) Harwood v. Goodright, Cowp. 92. 1 Pow. Devis. 528, note by Jarman, and the cases 
there cited. 



1 It is not necessary that the testator, in such case, should sign the will again ; but it 
is sufficient if he expressly acknowledges the signature to be his own, and declares his 
intent then to republish it as his last will, in presence of the number of witnesses re- 
quired by law; they attesting the same. Supra, ch. § 7-50; Witter v. Mott, 2 Conn. 
K. 67 ; Musser v. Curry, 3 Wash. 481 ; Reynolds v. Shirley, 7 Ham, 79; Jackson v. 
Potter, 9 Johns. 312. 



154 Title XXXVIII. Devise. Ch. VII. 5. 19—21. 

the first and second wills were found together in a paper, can- 
celled ; and the duplicate of the first will was found uncancelled* 
in the testator's room, among other papers. It was determined 
that the testator had died intestate ; for the cancelling the copy 
which the testator had in his possession, of the first will, was a 
cancelling of the duplicate; and therefore, at the time of making 
the second will, the first was, upon every principle of law, most 
clearly revoked, and could never be set up again, but by a re- 
execution, (a) 

20. A surrender of a copyhold to the use of a person's will, may 
be worded in such a manner as to operate as a republication of a 
former will, so as to make the copyhold pass by such will. 

21. A person having made his will, and devised all his free- 
hold and copyhold estates to several uses, afterwards purchased 
other copyhold lands, which he surrendered thus : " To the uses 
declared or to be declared in and by his last will and testa- 
ment." (b) 

The Court of Chancery directed a case to be sent to 
123 * ihe Court of * King's Bench, whether the after-purchased 
copyholds passed by the will. 
Lord Mansfield said, when a man republishes his will, the 
effect is, that the terms and words of the will should be construed 
to speak with regard to the property he is seised of at the time 
of the date of the republication ; just the same as if he had such 
additional property at the time of making his will. Therefore, 
if one devises lands by the name of B, C, and D, and purchases 
new lands, and republishes his will, the republication does not 
concern such new lands, because the will speaks only of the par- 
. ticular lands, B, C, and D. But if the testator in his will says, 
" I give all my real estate ; " a republication will affect such 
newly-purchased lands, because it is then the same as if the tes- 
.tator had made a new will. Apply this rule to the case of a sur- 
render, and I am of opinion that the surrenderer may express 
himself so as to make it relate to a will actually made ; and that 
the copyhold lands so surrendered will pass by it. Suppose a 
testator, seised of copyhold lands, makes his will without a sur- 

(a; Burtonshaw v. Gilbert, Cowp. 49. (James v. Marvin, 3 Conn. E. 576.) Pemberton 
v. Pemberton, 13 Ves. 290. 

(b) Heylyn v. Heylyn, Cowp. 130. 1 Walk. Cop. 128. (And see Doe v. Davy, Cowp. 
158. Lofft, 749. 2 Doug. 716, n.) 



Title XXXVIII. Devise. Ch. VII. s. 21. 155 

render ; if he afterwards surrender them to the use of his will, 
such surrender will clearly make his will good, and is effectual 
to pass them ; because it only obviates the mode and form of 
conveyance; What has the testator done here ? Having made 
his will, and declared his lands to uses, he surrenders his newly- 
purchased copyholds to the uses, intents, and purposes declared, 
or to be declared, in his will. It is precisely the same thing as 
if he had said, " And whereas I have made a will so and so, and 
devised all my lands to I. S. to such and such uses ; I mean these 
newly-purchased lands should pass to the same uses." 

The Court certified, that the surrender did, by express reference 
to the uses declared by the will, adopt and apply the words of 
the will to the copyhold lands, as if the testator had been seised 
thereof at the time of making the said will ; and therefore they 
were subject to the same uses, to which all the testator's copy- 
hold-lands were devised, (a) 

(a) Att.-Gen. v. Vigor, 8 Ves. 256. 



156 



CHAP. vin. 



OF VOID DEVISES. 



Sect. 2. Devise to the Heir at Law. 
5. Though charged with Debts. 
9. The Devisee must have been 
sole Heir. 
11. A difference in the Estate 
rendered the Devise good. 
18. Devises to Charitable Uses. 



Sect. 21. 
23. 

36. 

39. 
42. 



Where there has been Fraud. 
Where the Devisee dies before 

the Devisor. 
The Estate descends to the 

Heir. 
Where the Devise is' uncertain. 
Or the Devisee disagrees. 



Section 1. Devises are in some cases void ab initio; as where 
the testator devises what the law already gives, or in mortmain, 
or where any fraud has been -practised on the testator; and de- 
vises are also void where they are totally uncertain. 

2. With respect to the first sort of devises that are void ab 
initio, it is a rule of law, 1 that where a testator makes the same 
disposition of his estate as the law would have done, if he had 
been silent, the will, being unnecessary, is void. If therefore, a 
person devises his lands to his heir at law, in fee, it is a mere 
nullity, and the heir will take by descent, as his better title ; for the 
descent strengthens the title by taking away the entry of those 
who might have a right to the lands ; whereas, if the heir took 
by the devise, he was then only in by purchase. And this rule 
applies to wills made in pursuance of powers, as well as to de- 
vises deriving their effect from the Statute of Wills, (a) 

3. Thus, where a person devised lands to his wife for life, 
remainder in fee to I. S. who was his heir at law, it was a void 
devise as to the remainder ; because the reversion would have 
descended to I. S. after the determination of the particular es- 
tate, (b) 

4. The same rule is applied to copyholds ; and therefore a 

(a) (Parsons v. Winslow, 6 Mass. 169.) Tit. 29, c. 1, s. 7. Tit. 32, c. 17. 

(b) Bashpool's case, 2 Leon. 101. Hurst v. Winchelsea, 1 Bl. R. 187. 



1 Altered in England by stat. 3 & 4, u. 106. See infra, § 17. 



Title XXXVIII. Devise. Ch. VIII. s. 4—10. 157 

surrender * of a copyhold to the use of a will, and a de- * 125 
vise thereof to the heir at law, will not give the devisee an 
estate by purchase, (a) 

5. Although the devisor charges his estate with the payment of 
his debts, or with portions to his younger children, yet if he 
afterwards ((►vises the estate to his heir at law in fee, the devise 
will be void, and the heir at law will take by descent, (b) 

6. A person devised to each of his younger children ,£20 when 
they attained the age of twenty-one years, and devised all his 
estates to his eldest son, to hold to him and his heirs, upon 
condition that he should pay to his other children the said sums 
appointed to them ; and if he did not pay the same, then the 
lands to go to the younger children and their heirs. Adjudged 
that the eldest son took by descent, (c) 

7. A person, seised in fee, devised lands to his wife for life, and 
after her decease, to his next heir at law, and to his or her heirs; 
provided such heir should pay £1,000 to such person or persons 
as his wife should appoint. It was resolved, that the heir took 
by descent, and not by the will. And it would be mischievous 
if every little legacy should alter the course of descent, upon 
which the heir might plead to the obligation of the ancestor, riens 
per descent, (d) 

8. In an action of debt on the bond of the father, to whom the 
defendant was heir, the plea was riens per descent ; the fact was, 
that the father had devised his lands to the defendant, charged 
with debts ; and the question was, whether this made him a 
purchaser. The Court said, that a charge on" the estate did not 
alter the manner of the heir's taking the land. A devise was void, 
where it gave the same estate as would be taken by descent. 
Judgment for the plaintiff, (e) 

9. But the devisee must be sole heir to the lands devised ; for 
if he was only one of the heirs, he would take under the devise. 

10. A. B. having two daughters, one of them had issue a son, 
and died. A. B. devised all his estate to this son of his daughter, 
in fee ; and the question was whether the son should take all 

(a) Smith v. Triggs, 1 Stra. 487. (6) Fearne's Opin. 229. 

(c) Haynsworth v. Pretty, Cro. Eliz. 833, 919. Emerson v. Inchbird, 1 Ld. Kaym. 728. 

(d) Clark v. Smith, Com. E. 72. 

(c) Allen v. Heber, 1 Black. R. 22. Chaplin v. Leroux, 5 M. & Sel. 11. 

VOL. III. 14 



158 Title XXXVIII. Devise. Ch. VIII. s. 10—14. 

by this devise, or one moiety by descent, and the other by devise ; 

for there could not be a descent of a moiety to one coparcener as 
heir: one could not plead a descent unifilice et * cohmredi; 

126 * but it was a descent to all. It was resolved that the grand- 
son took by devise, (a) 

11. Where, however, an estate is devised to anwieir at law, 
different in point of quantity from that which he would take by 
descent, the devise will prevail, and the devisee shall take under it 

k as a purchaser. Thus, it is laid down in Plowden, 545, that if a 
man devises his lands to his son and heir, to have to him and the 
heirs of his body, this is a good devise, because it is another 
estate than he would have had by descent, (b) 

12. A person devised to his eldest son, and to his heirs and 
assigns, all other his real estate not before devised ; nevertheless, 
in case he should die without issue, not having attained twenty- 
one, then from and immediately after his death under age, and 
without issue, unto the testator's son William. Lord Keeper 
Henley was of opinion, that the eldest son took by devise, as 
having under the will a different estate than would have 
descended to him; the one being pure and absolute, "the ether 
not. (c) 

13. But the authority of the preceding c.ase is materially 
shaken, if not overruled, by Doe v. Timins, in which there was a 
devise to the heir at law in fee, with an executory devise over, in 
case he did not attain twenty-one years; the Court of K. B. held, 
that this did not alter the quality of the estate, which he would 
otherwise have taken as heir, and that he therefore took by de- 
scent, and not by purchase, (d) 

14. A difference in the quality of the estate will also give effect 
to the devise. Thus in Mich. 37-38 Eliz., Lord Coke, who was 
then Attorney- General, demanded of the Court of King's Bench 
their opinion on this case. A man having two daughters, being 
his heirs, devised his lands to them and their heirs, and died. 
Whether they should take as joint tenants by the devise, or as 
coparceners by descent? And all the Justices held clearly, that 
they should have it as joint tenants ; for the devise gave it to 

(a) Beading v. Royston, 1 Salk. 242. 2 Ld. Eaym. 829. Com. R. 123. 
(i) Swaine v. Burton, 15 Ves. 371. Infra, c. 12. 

(c) Scott v. Scott, Amb. 383. 1 Eden, 458. 

(d) Doe v. Timins, 1 Barn. & Aid. 530. See also Chaplin v. Leroux, 5 M. & Sel. 14. 



Title XXXVIII. Devise. Ch. VIII. s. 14—16. 159 

them in another degree than the common law would have given 
it. (a) 

15. In a formedon in the descender, brought by A, B, and C, of 
lands in gavelkind, the warranty of the ancestor was pleaded in 
bar against them, upon which they were at issue, if assets by 
descent. It was found by verdict, that the father of the demand- 
ant was seised in fee of the lands, being of the nature of 

* gavelkind, and devised the same to the demandants, *127 
being his heirs by the custom, and to their heirs, equally 
to be divided amongst them. And if the demandants should be 
accounted to be in of the lands by descent, or devise, was the 
question ; for if by devise, then they should not be assets. The 
Court was of opinion that they were in by the devise ; because 
they took as tenants in common. (6) 

16. In an opinion of Mr. Fearne, which has been printed, he 
says, that a devise to the heir and another, as tenants in com- 
mon, will not prevent the heir's taking his moiety by descent. 
For suppose a testator devises a moiety, or any other undivided 
share of his real estate, to a' stranger, making no disposition of 
all the remaining undivided share, such remaining share would 
of course descend to his heir at law, and he must hold it in 
common with the devisee of the undivided share devised. It 
was clear, therefore, that an heir might take by descent, as tenant 
in common with a devisee, an undivided part of the estate of 
which his ancestor was solely seised : and it appeared to be 
immaterial whether the share he so takes is expressly devised to 
him, or left unnoticed by the will : for if expressly devised, he 
takes it in common ; and if not noticed, he takes it in the same 
manner : and a devise to two or more as tenants in. common is 
in effect a devise of one undivided part to one, and of another 
undivided part to the other. So that under such a devise to an 
heir and a stranger, as tenants in common, the heir takes as if 
one undivided moiety were devised to the stranger, and the resi- 
due to himself; that is, in the same manner as if no disposition 
at all of such residue had been expressed in the will, in which 
case he would have taken by descent ; and therefore, the same 
estate being devised to him in such residue, as he would have 
taken by descent, the general rule respecting devises to an heir 
extends to it. (c) 

* (a) Cro. Eliz. 431. (J) Bear's case, 1 Leon. 112. (c) Fearne's Opin. 128. Infra, o. 16. 



160 Title XXXVIII. Devise. Ch. VIII. s. 17-.20. 

17. [But the rule of law discussed in the preceding sections of 
this chapter, is now only applicable to devises in wills of tes- 
tators dying previously to, or on the 31st day of December, 1833 ; 
for now, by the fourth section of the stat. 3 & 4 Will. IV. c. 106, 
it is enacted, that when any land shall have been devised by any 
testator, who shall die after the above day, to the heir of such 
testator, such heir shall be considered to have acquired the land 

as a devisee, and not by descent.] 
128 * * 18. In consequence of the statute 9 Geo. II. c. 36, 
which has been already stated, all devises and bequests 
of lands and tenements, or of <any sums of money to be laid out 
in the purchase of lands and tenements, for any charitable uses 
whatsoever, are void, (a) "(• ] 

19. A devise was held by Lord Northington to be void, being 
proved to be upon a secret trust for a charity ; conveyances having 
been made by the devisees, and the trust declared, though they 
denied by their answer having made any promise, (b) 

20. In another case, before the same Judge, where there was a 
devise by will, attested by three witnesses, to A, B, and C, and the 
heirs of the survivor ; the bill stated, that it was upon a secret 
trust for a charity, declared by an instrument, executed at the 

(o) Tit. 32, o. 2, s. 35, et. seq. sup. p. 16, note. (A) Edwards v. Pike, 1 Eden, K. 26?. 

[t A devise accompanied with a desire that the devisee would convey to some chari- 
table use (the will afterwards limiting an estate for life to the devisee) was held void in 
toto. Doe v. Wrighte, 2 Bar. & Aid. 710. — Note to former edition.] 

1 This statute, as Chancellor Kent, observes, was not in any sense a mortmain act ; 
but its sole object was to protect persons in extremis from imposition. 4 Kent, Comm. 
507, note. The reasons which induced its passage, in England, have long since in 
great measure ceased ; and in this country their existence has ever been rather 
imaginary than real. The policy of such enactments, even in England, has been 
severely questioned by Mr. Jarman, in his Treatise on Wills, Vol. I. p. 21 1, note ; and 
his observations apply here with augmented force. 

In the United States, with the exception of Pennsylvania, the statutes of mortmain 
have not been reenacted or practised upon ; but every corporation may take and hold 
lands to any uses, not foreign to the purposes of its creation; subject only to the re- 
strictions which a few of the States have imposed. See supra, ch. 2, § 20, note ; see 
also 2 Kent, Comm. 283 ; 4 Kent, Comm. 507 ; Angell & Ames on Corp. ch. 5, p. 112, 
113 ; Ante, tit. 1, § 40, note; Tit. 11, ch. 2, § 15, note; Tit. 32, ch. 2, § 34, note; 1 Jarm. 
on Wills, 57, 58, 197, notes by Perkins ; Sohier v. St. Paul's Ch. 12 Met. 250 ; Gibson 
u. M'Call, 1 Rich. 174. [A bequest for the promotion of religious and charitable uses 
and enterprises is valid, even though there be no trustee appointed to carry the same into 
effect. In such a case, the heir at law or the executor, as the case may be, becomes 
the trustee, or, one will be appointed by a Court of Equity. Brown v. Kelsey, 2 Cush. 
243 ; see also Williams v. Williams, 4 Selden, (N. Y.) 525 ; Beall v. Eox, 4 Geo. 404.] 



Title XXXVIII. Devise. Ch. VIII. s. 20—22. 161 

same time as the will, but attested by two witnesses only, which 
was admitted by the answer ; held, that the devise was void, 
under the Statute of Mortmain, (a) 

21. Where any fraud or circumvention has been practised on 
a testator, or where he was incapable, by any weakness of mind, 
of disposing of his lands, the devise is void. But if the validity 
of a will of lands be impeached on these grounds, a court of 
equity will not set it aside, but will direct a trial at law, on the 
issue of devisavit vel non. For if the will be obtained by fraud, 
or be made by a person incapable of devising, it is not in point of 
law the testator's will ; and therefore these points are proper to 
be tried by a jury, (b) 1 

22. It was held in a modern case, that in order to set aside a 
. will for fraud, parol evidence might be given of questions asked 

by the testator, at the time of executing his will, whether the 
contents were the same as those of a former will, (c) 

(a) Boson v. Statham, 1 Eden, E. 508. 9 Ves. 519. 

(b) Kerrich v. Bransby, 7 Bro. Pari. Ca. 437. Webb v. Claverden, 2 Atk. 424. 

(c) Doe v. Allen, 8 Term E. 147. 



1 The declarations of the testator, before and at the time of making the will, and 
afterwards, if so near the time as to be a part of the res gestae, are admissible to show 
fraud in obtaining the will. But subsequent declarations, not part of the res gestae, are 
not admissible ; especially where the will has always been in the testator's possession. 
At all times such evidence is suspicious ; of very easy fabrication, and yet of very diffi- 
cult refutation. 

The declarations of the testator, as to his intention to alter, revoke, or destroy his will, 
and that he had been prevailed upon not to do so, are not admissible to show that such 
alteration or revocation was fraudulently prevented; such fraudulent prevention or 
suppression must be shown, if at all, by acts done or attempted to be done, by the tes- 
tator, and suppressed by fraud, violence, circumvention, or threats. But whether even 
this latter kind of evidence is admissible, since the Statute of Frauds, is exceedingly 
doubtful. Per Story, J., in Smith v. Fenner, 1 Gall. 172, 173. [Declarations of the 
testator made near the time of the execution of the will, are admissible to show the 
state and condition of his mind, but not to show that undue importunity and influence 
were exerted over him ; and such proof must be limited to showing weakness of mind, 
and it is not competent to prove the facts stated in such declarations. Kobinson v. 
Hutchinson, 26 Vt. (3 Deane,) 38 ; Waterman v. Whitney, 1 Kernan, N. Y. 157 ; Parra- 
more v. Taylor, 11 Gratt. (Va.) 220; See also Kenworthy v. Williams, 5 Ind. (Porter,) 
375; Banyardu.McElroy,21 Ala.311; Gilbert*. Gilbert, 22 lb. 529; Roberts v. Trawick, 
17 lb. 55; S. C. 13 lb. 68; McTaggart v. Thompson, H Penn. State B. (2 Harris,) 
149. Fraud or undue influence in procuring one legacy, does not invalidate other 
legacies which are the result of the free will of the testator, but if the fraud or undue 
influence affects the whole will, though exercised by one legatee only, the whole will is 
void. Florey v. Florey, 24 Ala. 241.] 

14* 



162 Title XXXVIII. Devise. Ch. VIII. s. 23. 

23. A devise may become void by an event subsequent to the 
making of a will. Thus, it is a rule, that if the devisee dies 
before the devisor, the devise becomes void. A doctrine, which 
was probably derived from the rule of the Roman law. — Pronon 
scriptis sunt Us relicta qui, vivo testatore, decedmt. (a) 1 

(a) (Anderson v. Parsons, 4 Greenl. 486.) 



1 This rule of law has been recently changed in England, by the statute of 1 Vict. 
c. 26, § 33, which provides, that where the devisee dies before the testator, leaving issue 
alive at the testator's death, the devise shall not lapse, but shall take effect as though 
the devisee had died immediately after the testator, unless a contrary intention shall 
appear by the will. 

Provisions, similar in substance, but somewhat varying in details, exist in a, major- 
ity of the United States. Thus, in Maine, Massachusetts, Vermont, Ohio, Michigan, and 
Missouri, it is only where the devisee is " a child or other relation " of the testator, that 
the devise does not lapse. 

In New York, New Jersey, Pennsylvania, Virginia, Indiana, Mississippi, and Arkansas, 
the provision applies only to the case where the devisee is " a child or other descendant " 
of the testator. 

In Connecticut and Illinois, the devisee must be either " a child or grandchild " of the 
testator. 

And in New Hampshire, Rhode Island, and Georgia, the provision extends to a gift to 
" any legatee or devisee " whomsoever. 

It is further qualified in South Carolina, bj the condition that, if any child die in the 
lifetime of the parent testator, leaving issue, any legacy given to the child shall go to 
his or her issue, unless such deceased child was equally portioned with the other children, 
by the parent, when living. LL. S. Car. Vol. V. p. 107. 

Upon the English statute it has been held, that a devise to the testator's daughter, in 

■ trust, to be settled by her for the benefit of her children, did not lapse by her death. 
Ford v. Fowler, 3 Beav. 146. 

If the devisee dies, leaving no issue living at the death of the testator, the case is not 
within any of the above statutes, and of course the devise lapses, by the common law. 
Fisher v. Hill, 7 Mass. 86 ; Ballard v. Ballard, 18 Pick. 41. 

In case of- the pre-deoease of the devisee, leaving issue, it has been further held, 

■ upon the English statute, that the issue is not substituted for the deceased devisee, at 
all events ; but that the gift became the absolute property of the original devisee, so as 
to be disposable by his will, notwithstanding his death before the testator. Johnson v. 
Johnson, 3 Hare, 157; 8 Jur. 77. And see Griffiths v. Gale, 12 Sim. 327, 354; 8 Jur. 
235. Other cases are — Lee v. Pain, 4 Hare, 250; Hatfield v. Pryme, 9 Jur. 838; 
Penny v. Turner, 10 Jur. 768. 

[A will provided that the executors of the testator should, on the death of his wife, 
apply the residue of his property for the use of such charitable institutions as they 
should deem best. The wife survived the executors, and it was held, that a contingency 
not provided for had happened, and that the bequest lapsed. Fontain v. Bavenel, 17 
How. U. S. 369. So where there was a gift to a religious corporation, whose charter 
expired before the death of the surviving annuitant, it was held that the legacy lapsed. 
Andrew v. N. Y. Bible, &c. Society, 4 Sandf. Sup. Ct. 156. The refusal or incapacity 
of the first devisee to take, where there is a devise to several in succession, does not 



Title XXXVIII. Devise. Ch. VIII. s. 24—27. 163 

24. A devised lands to B and his heirs. B died in the life- 
time of the testator. The question was, whether. the heir of B 
should take any thing by this devise. It was determined 

that * he should not ; for it was a principle of law, that * 129 
in all gifts, whether by devise or otherwise, there ought 
to be a person in esse capable of taking at the time the gift vests ; 
and as the thing devised cannot vest till the death of the devisor, 
at which time devisee was dead, it followed that he could take 
nothing by the devise. As to the word " heirs " being inserted 
in the devise, it was only used as a word of limitation, to denote 
the quantity of estate which the devisor meant to give, and not 
with an intention to describe the heirs of B, or to give them any 
thing, (a) 

25. Henry Fuller, having issue four sons, John, Richard, 
Edward, and Henry, devised lands to his second son, and the 
heirs of his body, and after his death without issue, then to his 
third son. The second son died in the lifetime of his father, 
leaving issue. It was adjudged, that the issue of the second son 
took nothing by the devise, it being lapsed ; but that the third 
son might enter, (b) • 

26. T. Addison, having two daughters, devised all his estates 
to his second daughter, and the heirs of her body begotten, and 
for want of such issue, to his eldest daughter. The second 
daughter died in the lifetime of the testator, leaving a son. 
Adjudged, that the devise to the second daughter became void, by 
her dying in the lifetime of the testator ; and that her son could 
not take as heir of her body. It was also resolved, that the eldest 
daughter should take immediately, by virtue of the devise ; for 
when the first devise is void, the remainder shall take place as if 
no such devise had been made, (c) 

27. E,. "Wynn devised his estate to his brother M. Wynn, and 
the heirs male of his body, remainder to O. Wynn and the heirs 

(a) Brett v. Rygden, Plowd. 341. See 3 Mau. & Selw. 300. 
(J) Fuller v. Fuller, Cro. Eliz. 422. Doe v. Colyear, 11 East, 548. 

(c) Hutton v. Simpson, 2 Vera. 722. S. C. Preo. in Chan. 439. Davy v. Kemp, 0. Bridg. 
Kep. 384. 



cause it to lapse, but it passes to the next in succession. Yeaton v. Roberts, 8 Foster, 
(N. H.) 459. See also Morris v. Beyea, 15 Barb. 416 ; DeKay v. Irving, 5 Denio, 646 ; 
Perry v. Logan, 5 Rich. Eq. 202-1 , 



164 Title XXXVIII. Devise. Ch. VIII. *. v 27^-39. 

male of his body. M. and O. Wynn died in the lifetime of the 
testator ; but O. Wynn left an only son, who claimed under the 
devise. It was resolved that he took nothing, (a) 

28. One, seised in fee, devised lands to A and his issue, re- 
mainder to B and his issue, remainder to the heirs of A. A died 
without issue in the lifetime of the testator ; and B died in the 
lifetime of the testator, leaving issue the defendant, who was 
also the heir of A ; and the plaintiff was the heir of the testator. , 
The question was, whether, as the devisees A and B both died 
in the lifetime of the testator, the issue of B, who was born after 

the will was made, and so could not take jointly with 
130* the devisees, * could take either as heir of the body of 
B or as right heir of A. (b) 
Lord Ch*. J. Parker delivered the unanimous opinion of the 
Court, that this case was exactly within the reason of the case of 
Brett v. Bygden. First, because as well in this case the word 
isstoe, as in that the word heirs, was clearly used as a word of 
limitation, viz., to measure out the quantity of estate that the 
devisee was to take ; and not as a word of purchase ; the devisee 
only being in the view eftid consideration of the testator, and the 
words heir or issue mentioned for nothing else, but to limit what 
estate the devisee should take, (c) 

29. Susan Jolland devised certain lands to the use and behoof 
of her sister Elizabeth, the wife of John Belchier, and her assigns 
for and during the term of her natural life ; and after the deter- 
mination of that estate, to the use of W. A. and J. P. and their 
heirs, during the life of the said Elizabeth, upon trust to preserve 
the contingent uses and estates, thereinafter limited, from being 
defeated or destroyed ; and from and after her decease, then to 
the use of the heirs of the body of the said Elizabeth, lawfully 
issuing ; and for want of such issue, to the use and behoof of 
her sister Catherine Jolland,, in the same words as are used in the 
devise to Elizabeth, (d) 

Elizabeth Belchier died in the lifetime of the testatrix, leaving 
issue one daughter, Catherine. Upon the death of the testatrix, 
Catherine Jolland, who married one Hodgson, suffered a recovery 

(a) Wynn v. Wynn, 3 Bro. Par. Ca. 95. 

(5) Goodright v. Wright, 1 P. Wms. 397. 1 Stra. 25. 10 Mod. 370. 

(c) Ante, s. 23. Busby v. Greenslate, 1 Stra. 445. 

(«Z) Hodgson v. Ambrose, Doug. 337. 3 Bro. P. C. Toml. ed. 416. 



Title XXXVIII. Devise.' Ch. VIII. s. 29—30. 165 

of the premises. A question having arisen in the Court of Chan- 
cery, respecting the construction of this will, a case was made 
for the opinion of the Judges of the Court of King's Bench, 
upon the following question :•" Whether Catherine Belchier, the 
daughter of Elizabeth Belchier, took any and what estate, under 
the will of Susan Jolland ? " To which the Judges of the Court 
of King's Bench answered, — " If Elizabeth Belchier would have 
taken an estate tail, in case she had survived the testatrix, we 
think, by her dying before the testatrix, it is a lapsed devise, and 
Catherine, the daughter of Elizabeth, can take nothing." (a) 

The Court of Chancery having decreed in conformity to this 
certificate, an appeal was brought in the House of Lords, and 
the following question was put to the Judges : " Whether Cathe- 
rine Belchier, the daughter of Elizabeth Belchier, took any and 
what estate under the will of Susan Jolland." 

* The Lord Ch. B. delivered the unanimous opinion of * 131 
the Judges present, that Catherine Belchier took no estate 
under the will of Susan Jolland.f The decree was affirmed. 

30. Rich. White, having issue Simon his eldest son, and Ham- 
ilton his second son, devised all his lands in B. to his eldest son 
Simon, and the heirs of his body ; and for default of issue of 
his said son Simon, then he devised his said estate to his son 
Hamilton, and the heirs of his body. Simon died in the lifetime 
of his father, leaving issue four sons and four daughters. The 
question was, whether the eldest son of Simon took any thing 
by this devise, or whether it lapsed to Hamilton, the person next 
in remainder, (b) 

The Court of King's Bench in Ireland determined, that the 
eldest son of Simon took under this devise. This judgment was 
reversed by the Court of King's Bench in England. A writ of 
error was then brought in the House of Lords ; and it was con- 
tended on behalf of the eldest son of Simon, that he ought to 
take under this devise. I. Because it was plain the testator did 
not mean to exclude the issue of his eldest son from the inherit- 
ance, the children of Simon being alive, and known to the tes- 
te) Vide infra, o. 14. (6) Warner v. White, 3 Bro. Pari. Ca. 435. 



[t It was also held that Catherine Jolland took an estate tail. Infra, u. 14. — Note to 
former edition.] 



166 Title XXXVIII. Devise. Ch. VIII. s. 30. 

tator, at the time he made the devise to Simon and the heirs of 
his body. II. Because the remainder to Hamilton was expressly 
limited to take effect only in default of issue of the testator's son 
Simon ; and no devise was made oithe estate, until such default 
should happen ; and it was a principle in law, that the heir 
should take every thing which was not devised from him; 
III. Because courts of justice have been always anxious to 
effectuate the intentions of testators, where they are not con- 
trary to the rules of law, or settled authorities ; and there was no 
case to be found, in which it had been adjudged, that a devise to 
a man and the heirs of his body lapsed, for the benefit of a per- 
son in remainder, from the circumstance of the first devisee dying 
in the testator's lifetime ; where it appeared that the heir of the 
body of the first devisee was likewise heir at law of the tes- 
tator. 

On the other side it was contended, that by the established 
rules of law, the devise to Simon became void, by his death in 
the lifetime of the testator ; and the remainder to Ham- 
132* ilton the * second son, took effect immediately on his 
father's death. This doctrine had been adopted in early 
times, and had continued down to the present. It was established 
in the early part of the reign of Queen Elizabeth, and was rec- 
ognized in a variety of cases, down to the year 1780, nor was it 
ever judicially contradicted or impeached. But there appeared 
at the end of the report of Fuller v. Fuller, Cro. EKz. 422, a dic- 
tum of Lord Ch. J. Popham, that where a devise was to a son in 
tail, his issue, in case of his death in the lifetime of his father, 
should take before the remainder-man. But this, at most, was 
an extrajudicial opinion ; and was not admitted in the case of 
Hodgson v. Ambrose, (a) 

The following question was put to the Judges : — " Whether, 
in the event that had happened, the defendant, Hamilton White, 
took any, and what estate, in the lands of B, under the devise to 
him, for default of issue of Simon White ? " 

The Lord Ch. Baron delivered the .unanimous opinion of the 
Judges present, that Hamilton White took an estate tail ; and 
the judgment of the Court of King's Bench in England was 
affirmed. 

(o) Ante, § 24. Ante, § 28. 



Title XXXVIII. Devise. Qh. VIII. s. 31—37. 167 

31. A republication of a will, after the death of a devisee in 
tail, will not give any estate to the issue of the devisee. 

32. N. G. devised lands to her goddaughter and the heirs of 
her body, who died in the lifetime of Jhe testatrix, leaving a son. 

- The devisor knew of the death of the devisee, and of the birth 
of her son ; after which she made a codicil that operated as a 
republication of her will. It was determined, that the devise, 
having become void by the death of the devisee, did not operate 
by its republication, so as to give any estate to the son of the 
devisee, (a) 

33. It has been stated, that where a trust is sufficiently created, 
it will fasten itself upon the land, and will not become void by 
the incapacity or death of the trustee, (b) 

34. In consequence of this principle, it was determined by 
Lord Camden, that where an estate was devised to trustees, 
upon trust for a charity, the death of the trustees in the lifetime 
of the testator, did not make the devise void, (c) 

35. Lord Hardwicke has observed, that in the case of copy- 
holds, though the land passes by the surrender, and the 

will is * only directory of the uses ; yet, if the devisee dies * 133 
in the lifetime of the devisor, the devise is void, (d) 

36. Where a devise of lands in fee simple becomes lapsed by 
the death of the devisee, in the lifetime of the testator, the estate 
devised will not go to the residuary devisee of the real estate, but 
will descend to the heir at law of the testator. 1 

37. A person devised his messuage in E. to F. C. and his 
heirs, and all the rest and residue of his messuages, lands, and 
hereditaments, to I. L., his heirs and assigns forever. F. C. died 
in the lifetime of the testator, by which the devise to him lapsed. 
And the question was, whether the latter clause in the will would 
carry over the lapsed devise to the residuary devisee, or it should 
descend to the heir at law of the testator, (e) 

The Court held, that the devise of all the rest and residue 

(a) Doe v. Kett, 4 Term E. 601. (S) Tit. 12, c. 1, s. 9.0. 

(c) Att.-Geu. v. Downing, Amb. 571. (d) 2 Vez. 77. Williams v. Coade, 10 Ves. 503. 

(e) Wright v. Hall, Fortesc. 182. Roe v. Fludd, Id. 184, S. P. 



1 A lapsed devise goes to the heir at law ; but a void devise goes to the residuary 
devisee, if there be any. Ferguson v. Hedges, 1 Harringt. 524. 



168 Title XXXVIII. Devise. Ch. VIII. s. 37—39. 

did not convey what was devised before ; for wills must be con- 
strued from the intent of the testator at the time of making 
them, which appeared to be to give his whole estate to F. C. 
and his heirs in the messuage of E. ; and at the time when the 
will was made he had no residue left in that messuage ; and the 
devise to F. C. being void, the messuage would descend to the 
heir. 

38. In a subsequent case of the same kind, reported by 
Lord Ch. J. Willes, the following propositions were laid down : — 
I. That the intent of the testator ought always to take place, when 
it is not contrary to the rules of law. II. That the intent of the 
testator ought always to be taken as things stood at the time of 
making his will ; and was not to be collected from subsequent 
accidents, which the testator could not then foresee. III. That 
when a testator, in his will, had given away all his estate and 
interest in certain lands, so that if he were to die immediately, 
nothing remained undisposed of, he could not intend to give any 
thing in those lands to his residuary devisee. And judgment 
was given accordingly, (a) 

39. Where it is impossible to discover, from the words of a 
will, what was meant to be given, or to whom, the will is void for 
uncertainty. 1 

(a) Doe v. Underdown, Willes Eep. 293. 



1 Words cannot be said to be ambiguous, because they are unintelligible to a man 
who cannot read ; nor is a written instrument ambiguous, merely because an igno- 
rant or uninformed person may be unable to interpret it. It is ambiguous only, when 
found to be of uncertain meaning, by persons of competent skill and information. Neither 
is a Judge at liberty to declare an instrument ambiguous, because he is ignorant of a 
particular fact, art, or science, which was familiar to the person who used the 
words, and a knowledge of which is therefore necessary to a right understanding of 
the words he has used. If this were not so, then the question, whether a will or 
other instrument were ambiguous, might depend, not upon the propriety of the 
language the party has used, but upon the degree of knowledge, general or even 
local, which a particular Judge might happen to possess ; nay, the technical accu- 
racy and precision of a scientific man might occasion his intestacy, or defeat his 
contract. Hence it follows, that no Judge is at liberty to pronounce an instrument 
ambiguous, until he has brought to his aid, in its interpretation, all the lights 
afforded by the collateral facts and circumstances, which may be proved by parol. 
In other word$ and more generally speaking, if the Court, placing itself in 
the situation in which the testator or contracting party stood at the time of ex- 
ecuting the instrument, and with full understanding of the force and import of the 
words, cannot ascertain his meaning and intention from the language of the instru- 



Title XXXVIII. Devise. Ch. VIII. s. 40. 169 

40. Thus, it is laid down in 33 & 34 Eliz. by Wray and Ander- 



ment, thus illustrated, it is a case of incurable and hopeless uncertainty, and the 
instrument therefore is so far inoperative and void. See 1 Greenl. on Evid. § 298, 300, 
and cases there cited. 

It has therefore been said, that it must be an extreme case, in which the Court will 
declare a will void for uncertainty ; Den v. M'Murtrie, 3 Green, 276 ; and that, to avoid 
a will for this cause, it is not enough that the dispositions in it are so obscure and 
irrational that it is difficult to believe they could have been intended by the testator ; 
but it must be incapable of any clear meaning whatever. Mason v. Robinson, 2 Sim. 
& Stu. 295. 

Thus, a devise of the testator's farm to his two nieces, the daughters of J. V, and 
his grandson, is not void for uncertainty, though the testator had three nieces, daughters 
of J. V., living when he made his will, and also, at his decease ; butthe three were held 
entitled to two thirds of the farm. Vernor v. Henry, 6 Watts, 192. 

A devise of the residue of his estate " to the cause of Christ, for the benefit and 
promotion of true evangelical piety and religion," with a direction to the executor to 
pay it over to certain persons, to be by them so appropriated ; was held valid, and 
by virtue of the statute of 43 Eliz. c. 4, not void for uncertainty. Going v. Emery, 
16 Pick. 107. 

But a direction to trustees, to apply the residue of the testator's personal estate, 
to such benevolent, charitable and religious purposes as they, in their discretion, 
may think most advantageous and beneficial, has been held too uncertain, and there- 
fore void. Williams v. Kershaw, 5 CI. & Fin. 111. And see Ellis v. Selby, 7 Sim. 
352. 

So, a request by a testator, that " a handsome gratuity " be given to each of his 
executors, is void for uncertainty. Jubber v. Jubber, 9 Sim. 503. And see, for 
other particular examples of uncertainty as to the object, Phillips v. Eastwood, LI. 
& G. 270 ; Heneage v. Ld. Andover, 10 Price, 230 ; Jones v. Hancock, 4 Dow, 145 ; 
Richardson u. Watson, 4 B. & Ad. 787; Atto.-Gen. u. Hinkman, 2 Jac. & W. 270. 

As to the person or object of the testator's bounty, it has been held, that a devise to 
T. P. " who resided at A. when I left England, or to his Iteirs, executors, administrators 
or assigns ; " the devisee having died in the testator's lifetime, was void for uncertainty. 
Waite v. Templcr, 2 Sim. 524. So, a devise " to the right heirs of me the testator for- 
ever, my son excepted ; it being my will he shall have no part in my estate," was held 
void, as a devise. Pugh v. Goodtitle, 3 Bro. P. C. 454. So, a direction, that after the 
expiration of a life-estate, all his real and personal estate should " be divided according 
to the Statute of Distributions, in that case made and provided." Thomas v. Thomas, 3 
B. & C.825 ; 5 D. & R. 700, S. C. 

See further, as to uncertainty in the person or subject, I Jarnrfon W.ills, ch. 13, 
p. 315-348, and the notes of Mr. Perkins. Gallego u. Atto.-Gen. 3 Leigh, 450. [A 
bequest was made to " the New York Methodist Conference Society for the support of 
old and worn-out preachers." Held that " the New York Annual Conference Ministers' 
Mutual Assistance Society," upon proof of its objects and that it was the only society 
within the limits of the Conference with such objects, was entitled to the bequest. New 
York Annual Conference Ministers' Mutual Assistance Society v. Clarkson, 4 Halst. 
Ch. R. (N. J.) 541. This clause in a will, " to each of my daughters a small tract of 
land," was held void. Weatherhead v. Baskerville, 1 1 How. U. S. 329. See also Second 
v. First Congregational Society, 14 N. H. 315 ; Townsend r. Downer, 23 Vt. (8 Washb.) 
VOL. III. 15 



170 Title XXXVIII. Devise. Ch. VIII. s. 40-^2. 

son, Ch. Justices, that if a man has two sons of the name of 
John, and devises his lands to his son John, if no direct 

134 * proof *can be made of his intent, as to which of his sons 
he meant, the devise is void for the uncertainty, (a) 

41. Testator left and bequeathed to all his grandchildren share 
and share alike. It was held, by Sir Thos. Plumer, M. B,, that 
the devise was void, there being uncertainty both in the subject 
and in the objects of the bequest, (b) 

42. It has been stated in a former chapter that a devisee may 
disagree to and disclaim a devise by deed, in which case nothing 
wilt vest in him; consequently the devise becomes void, and 
the lands descend to the heir at law. (c) 1 

(a) 5 Eep. 68, b. Doe v. Joinville, 3 East, 172. 
• (b) Mohun v. Mohun, 1 Swanst. 201. [Richardson v. Watson, 4 B. & Adol. 787. Att.- 
Gen. v. Sibthorp, 2 Russ. & My]. 107.] (Flint v. Hughes, 6 Beav. 342. Trippe v. Frazier, 
4H. & J. 446.) 

(c) Ante, u. 1, s. 18. Townson v. Tickell, tit. 32, c. 26. 



225 ; White v. Fisk, 22 Conn. 31. See also Robinson v. Allen, 11 Gratt. (Va.) 785 ; 
Tiraberlake v. Harris, 7 Ired. Eq. 1 88 ; Taylor v. The American Bible Society, lb. 201 ; 
Gregorys. Smith, 15Eng. Law&Eq. K. 202 ; Adams v. Jones, 9 lb. 269; Jackson v. 
Craig, 3 lb. 173.] 

1 The doctrine in the text is universally held ; but there are diversities of opinion 
upon the question, whether it is necessary for the devisee to disclaim by deed; some 
affirming that he may do this by parol. The decision of this question would seem to 
turn upon another, namely, whether the estate is vested absolutely in the devisee, 
upon the death of the testator, by operation of law, and without his own act, volition, 
or actual knowledge ; the devise being regarded as always for his benefit, and his 
assent therefore being presumed ; or whether the devise is to be regarded as " nothing 
more than an offer, which the devisee may accept or refuse." If the former is the 
true rule of law, it seems that the estate ought to be renounced by some known and 
recognized mode of conveying an estate. If the latter, then any solemn and un- 
equivocal act of refusal, though without deed, would seem to bo sufficient. The 
general practice is to execute a deed ; and this course a prudent counsellor will always 
advise. But it is said in Shep. Touchst. p. 452, that a verbal waiver is sufficient ; 
and this seems to have been the opinion of all the Judges in Townson v. Tickell, 
3 B. & Aid. 31 ; though in that case, the renunciation was by deed. In the later case 
of Doe v. Smyth, 6 B. & C. 112, the question was raised, but a decision of it was ex- 
pressly waived, as unnecessary ; though the Chief Justice remarked that, " it may be 
admitted that a devisee cannot be compelled to accept the devised interest, but may, by 
some mode, renounce and disclaim it." And, see Doe v. Harris, 16 M. & W. 517. As 
to the necessity of some act or volition of the alienee, in order to vest the title in him, 
see ante, tit. 32, ch. 1, $ 25, note. Chancellor Kent treats it as still an open question ; 
adding that, " Perhaps the case will be governed by circumstances." 4 Kent, Comm. 
534. The point was raised in Webster v. Gilman, 1 Story, B. 499, upon the fact of a 
long acquiescence, on the part of the devisee, in the open possession of the land by 



Title XXXVIII. Devise. Ch. VIII. s. 42. 171 

one claiming it by disseisin. The testator, died about the year 1795; and his daughter. 
Lady Holland, tho devisee, executed a deed of release and surrender of all her right in 
the land to the demandant, in 1836 ; this being her only act in regard to the lands. 
The tenant's possession commenced as early as tho year 1799, and had continued ever 
since without interruption. This point was disposed of by Mr. Justice Story, in 
delivering the judgment of the Court, in the following terms : — " But then, it is said, 
that Lady Holland, in fact, never accepted the life-estate in the premises under the 
will, but waived, or refused, or disclaimed the same ; and that her acquiescence for so 
long a period, without asserting any right of entry or possession, is a sufficient proof 
thereof. We see no reason, in tho facts of the case, upon which such a conclusion can 
be legitimately founded. On the contrary, her deed to her son is cogent evidence, 
that she did assert her title under the will, and meant (although ineffectually in point 
of law) to convey that title by her deed to her son. We know of no rule of law, by 
which a mere naked non-possession, or non-exercise of the right of entry and posses- 
sion of real estate under a devise, short of the period prescribed by the Statute of 
Limitations to bar a right of entry, is held to amount to a positive renunciation, or 
disclaimer of a devise, or to proof thereof. It may be even doubtful, whether, under 
our laws, any renunciation, or disclaimer, not by deed or matter of record, would be 
an extinguishment of the right of the devisee. But, at all events, it should be evi- 
denced by some solemn act or acknowledgment in writing, or by some open and posi- 
tive act of renunciation, or disclaimer, which will prevent all future cavil, and operate 
in point of evidence, as a quasi estoppel." See 1 Story, R. 514, 515. In one Ameri- 
can case, however, it has been held that the disclaimer must be in writing. Bryan v- 
Hyre, 1 Rob. Virg. R. 94. 

See also, ex parte Fuller, 2 Story, R. 327,330; Brown v. Wood, 17 Mass. 74; 
Ward v. Fuller, 15 Pick. 190; Ives v. Allyn, 13 Verm. 609. 

Whether a devisee in trust can disclaim by deed, after having in words assented to 
the devise in trust, quaere. Doe v. Harris, supra. 

[The refusal or incapacity of the first devisee to take, where there is a devise to sev- 
eral in succession, does not cause it to lapse, but it passes to the next in succession. 
Yeaton v. Roberts, 8 Foster, (N. H.) 459 ; see also DeKay v. Irving, 5 Denio, 646.] 



172 



CHAP. IX. 



CONSTRUCTION OF DEVISES. — GENERAL RULES. 1 



Sect. 1 . The Intention must be effectu- 
ated. 
• 15. Words rejected or supplied. 
1 8. The word or construed and. 
25. The word and construed or. 

29. And and or construed liter- 

ally. 

30. Particular Estates sometimes 

transposed. 



Sect. 32 
33. 

40. 

45. 
48. 



Contradictory Devises. 

A Perpetuity cannot be Cre- 
ated. 

But the Construction will be 
ey-pres. 

No Averment admitted to ex- 
plain Devises. 

Unless there is a latent ambi- 
guity. 



Section 1. A will, being considered as an instrument, made 
at a time when the testator cannot have the assistance of persons 



1 As to what law is to govern the formalities of a will of lands, the general rule of law 
is, that the law of the place where the land lies, lex rei slice, is to govern as to the ca- 
pacity or incapacity of the testator, the extent of his power to dispose of the estate, 
and the forms and solemnities requisite to give the will its validity and effect. But 
this rule has heen abrogated' in many of the United States, and a different rule adopted, 
by which lands in those States may pass by a will, made in a foreign country or state, 
in the form required by the law of the foreign state, and proved abroad. See supra, 
ch. 5, § 69, note. 

But in regard to the interpretation of wills, whether of movable or immovable 
property, where the object is merely to ascertain the meaning and intent of the 
testator, if the will is made at the place of his domicile, the general rule of the Com- 
mon Law is, that it is to be interpreted by the law of that place. Thus, for example, 
if the question be, whether the terms of a foreign will include the " real estate " of 
the testator, or what he intended to give under those words ; or whether he intended, 
that the legatee should take an estate in fee or for life only ; or who are the proper 
persons to take, under the words "heirs at law," or other designatio personarum, re- 
course is to be had to the law of the place where the will was made and the testator 
domiciled. And if the will is made in 'the place of his actual domicile, but he is in 
fact a native of another country ; or if it is made in his native country, but in fact 
his actual domicile at the time is in another country : still it is to be interpreted by 
reference to the law of the place of his actual domicile. The question, whether, it 
the testator makes his'will in one place, where he is domiciled, and afterwards ac- 
quires a new domicilein another country, where he dies, the rule of interpretation is 
changed by his removal, so that if the terms have a different meaning in the two 
countries, the law of the new domicile shall prevail, or whether the interpretation 



Title XXXVIII. Devise. Ch, IX. s. 1. 173 

skilled in the law, or, as it is usually expressed, when he is inops 
consilii, the Judges have at all times held, that it shall not be 
construed strictly, like a deed, but that the intention of the testa- 
tor, though not expressed in the proper legal and formal words, 
shall, notwithstanding, be carried into effect; it being a maxim of 
the English law, — Quod ultima voluntas testatoris perimplenda 
est, secundum veram intentionem.* 



shall remain as it stood by the law of the domicile where the will was made, is a ques- 
tion which does not seem yet to have undergone any absolute and positive decision in 
the courts acting under the common law. See 2 Greenl. on Evid. $ 670, 671, and 
cases there cited ; Story, Conn. Laws, § 479, a to m; 4 Kent, Comm. 513 ; 1 Jarm. on 
Wills, p. 1-10, and Perkins's notes. 

Where a Scotchman, domiciled in England, and having only personal property, 
being on a visit in Scotland, executed and deposited there a will prepared in the Scotch 
form, and died in England ; it was held, that the will was to be construed according to 
the English law. Anstruther v. Chalmer, 2 Sim. 1. So, the will of a subject of Great 
Britain, made in India, must be construed according to the laws of England. Trotter 
v. Trotter, 4 Bligh. N. S. 502. 

1 That the intention of the testator, as collected from the entire will with its codicils, 
must prevail, unless it violate some rule of law, is a principle everywhere recognized. 
See Kent, Comm. 534; Einlay v. King, 3 Pet. 346; Henoage v. Ld. Andover, 10 
Prince, 316 ; Land v. Otley, 4 Rand, 313 ; Bene v. Davis, 4 Hen. & Munf. 328 ; Westcott v. 
Cady, 5 Johns. Ch. 343 ; Leavens v. Butler, 8 Port. 380 ; Den v. McMurtrie, 3 Green, 276. 

For the convenience of the student, Mr. Powell's Rules for the construction of De- 
vises are here inserted ; omitting the authorities he cites for them ; and adding only 
some of a later date, and a few qualifications, in parentheses. See 2 Pow. on Dev. by 
Jarman,p. 5-11. 

1. That technical words are not necessary to give effect to any species of disposi- 
tion in a will. 

2. That the construction of a will is the same at law and in equity, the jurisdiction of 
each being governed by the nature of the subject. 

3. That a will speaks, for some purposes, from the period of execution, and for others, 
from the death of the testator ; but never operates till the latter period. [Gold v. 
Judson, 21 Conn. 616; Canfield v. Bostwick, lb. 550.] 

4. That the heir is not to be disinherited, without an express devise, or necessary im- 
plication ; such implication importing, not natural necessity, but so strong a probability 
that an intention to the contrary cannot be supposed. Bender v. Dietrick, 7 W. & S. 
284. [Gage v. Gage, 9 Poster, (N. H.) 533 ; Allen's Executors v. Allen, 18 How. 
U. S. 385.] 

5. That all the parts of a will are to be construed in relation to each other, and so as, 
if possible, to form one consistent whole ; but, where several parts are absolutely irrecon- 
cilable, (and the intention cannot be ascertained,) the latter part will prevail. Hoxie v. 
Hoxie, 7 Paige, 187; Covenhoven v . Shuler, 2 Paige, 122 ; Eraser v. Boone, 1 Hill, 
Ch. R. 367 ; Westcott v. Cady, 5 Johns. Ch. R. 343 ; Sherrat v. Bentley, 2 My. & K. 
149 ; Jones v. Doe, 1 Scam. 276. [Deering v. Adams, 37 Maine, (2 Heath J 264.] 

6. That extrinsic evidence is not admissible to alter, detract from, or add to, the 
terms of a will ; though it may be used to rebut a resulting trust, attaching to a legal 

15* 



174 Title XXXVIII. Devise. Ch. IX. s. 2. 

2. It follows that no technical words are necessary to convey 
a testator's meaning ; and whenever that is doubtful, it must be 



title created by it. Comport v. Mather, 2 W. & S. 450. Eor the exposition of this 
and the two following rules, see 1 Greenl. Evid. $ 277, 278, 280-283, 286-291, 295. 
[Allen's Exor's v. Allen, 18 How. U. S. 385; Trustees v. Peaslee, 15 N. H. 317 ; But- 
ton ». American Tract Society. 23 Vt. (8 Washb.) 336 ; Gaither v. Gaither, 3 Md. Ch. 
Dec. 158; Walston v. White, 5 Md.297; President, &c. v. Norwood, 1 Busbee, 29 
(N. C.) p. 65.] 

7. Nor can the meaning of words be varied by such evidence ; and therefore, in 
order to attach a strained and extraordinary sense to a particular word, an instrument 
executed by the testator, in which the same word occurs in that sense, is not admis- 
sible. 

8. But the courts will look at the circumstances under which the devisor made his 
will ; as the state of his property, of bis family, and the like. Lowe v. Ld. Hunting- 
tower, 4 Russ. 232 ■ Noel v. Noel, 12 Price, 216 ; Edens v. Williams, 3 Murph. 27. 

9. That, in general, implication is admissible only in the absence of, and not to con- 
trol, an express disposition. 

10. That an express and positive devise cannot be controlled by the reason assigned, 
(in the absence of fraud in the devisee,) nor by inference and argument from the other 
parts of the will ; and accordingly such a devise is not affected by a subsequent inac- 
curate recital of, or reference to, its contents ; though such reference may be used to 
assist the construction, in case of ambiguity or doubt. 

11. That the inconvenience or absurdity of a devise, is no ground for varying the 
construction, where the terms of it are unambiguous ; nor is the fact, that the testator 
did not foresee all the consequences of it, a reason for varying it ; but, where the inten- 
tion is obscured by conflicting expressions, it is to be -sought rather in a rational and 
consistent, than in an irrational and inconsistent purpose. Manigault v. Deas, 1 Bailey, 
Eq. R. 298; Defflis u. Goldschmidt, 19 Ves. 569; 1 Mer. 417; Laroche v. Davies, 
1 Jur. 574 ; Chambers v . Brailsford, 18 Ves. 368; 19 Ves. 652 ; 2 Mer. 25. 

12. That the construction cannot be strained, to bring a devise within the rules of 
law ; but it seems that, where the will admits of two constructions, that is to be 
preferred which will render it valid ; and therefore the court has adhered to the literal 
language of the testator, though it was highly probable he had written a word, by mis- 
take, for one which would have rendered the devise void. 

13. That favor or disfavor to the object, ought not to influence the construction. 
But see Noel v. Weston,'2 V. & B. 269, 271. 

14. That words are, in general, to be taken in their ordinary and grammatical sense, 
unless a clear intention to use them in another can be collected ; and they are, in all 
cases, to receive a construction which will give them all effect, rather than one that will 
render some of them inoperative ; and, of two modes of construction, that is to be pre- 
ferred which will prevent a total intestacy. Mowatt v. Carow, 7 Paige, 328 ; Eathborn 
v. Dyckman, 3 Paige, 9 ; Jones v. Doe, 1 Scam. 276 ; Leavens v. Butler, 8 Post, 
380 ; Doe v. Thomas, 1 M. & G. 335; Doe v. Green, 2 Jur. 859. 

15. That, where a testator uses technical words, he will be presumed to employ them 
in their legal sense, unless the context contain u clear Indication to the contrary. 
Vauchamp v. Bell, 6 Madd 343; Den v. Blackwell, 3 Green, 386; Read v. Back- 
house, 2 Rus. & My. 546; Jesson v. Doe, 2 Bligh, 1 ; 5 M. & S. 95; Langham v. 
Sandford, 2 Mer. 22. [Thus "bequeathe" may be construed "devise." Dow v. 



Title XXXVIII. Devise. Ch. IX. s. 2. 175 

collected from the scope of the whole will compared with its 
several parts ; for courts of justice cannot make a will for the 
party, nor interpret it by any arbitrary rule, but that mode of 



Dow,36 Maine, 211 ; Ladd v. Harvey 1 Poster, (N. H.) 514; and "heirs" "legatees," 
Collier i\ Collier, 3 Ohio, (N. S.) 369; "vested" held to mean " vested indofeasibly," 
or "not liable to be devested." Poole v. Bott, 17 Eng. Law & Eq. 13; Evans v. 
Godbold, 6 Kich. Eq. (S. C.) 26 ; Lasher v. Lasher, 13 Barb. 106. And parol evidence 
cannot be received to show in what sense the testator uses well-settled terms of law. 
Aspden's Estate, 2 Wallace, Jr. 368.] 

16. That words, occurring more than once in a will, shall be presumed to be used 
always in the same sense, unless a contrary meaning appear by the context, or un- 
less the words be applied to a different subject. And upon the same principle, 
where a testator uses an additional word or phrase, he shall be presumed to have an 
additional meaning. Kidgeway v. Munkittrick, 1 Dru. & War. 84. 

17. That words and limitations may be transposed, supplied, or rejected, where 
warranted by the immediate context, or the general scheme of the will ; but not 
merely on a conjectural hypothesis of the testator's intention, however reasonable, in 
opposition to the plain and obvious sense of the words. Covenhoven u. Shaler, 
2 Paige, 122; Lynch v. Hill, 6 Munf. 114; Brailsford v. Heyward, 2 Desau. 32; 
Sherratt v. Bentley, 2 My. & K. 149 ; Hamilton v. Boyles, 1 Brev. 414 ; Creswell v. 
Lawson, 7 G. & J. 227 ; Doe v. Nevill, 12 Jur. 181 ; Laroche v. Davies, 1 Jur. 574; 
White v. Barber, 5 Burr. 2703 ; Teatt v. Strong, 3 Bro. P. C. 219 ; 2 Burr. 910 ; Bart- 
lett v. King, 12 Mass. 543 ; Selden v. King, 2 Call. 72 ; 1 Yeates, 413. 

18. That words which it is obvious are miswritten, (as, dying with issue, for dying 
without issue,) may be corrected. (Her for their.) Keith v. Perry, 1 Desau. 353. {I/he 
should die, for when he should die.) Smart v. Clarke, 3 Russ. 365. 

19. That the construction is not to be varied by events subsequent to the execution ■ 
but the courts in determining the meaning of particular expressions, will look to alter- 
nate circumstances, in which they might have been called upon to affix a meaning 
to them. 

20. That devises, not grammatically connected, or united by the expression of a 
common purpose, must be construed separately, and without relation to each other ; 
though it may be conjectured, from circumstances, that the testator had the same 
intention in regard to both. There must be an evident intention to connect them ; 
Bight v. Compton, 9 East, 267 ; [yet the whole may be examined to ascertain the 
meaning of the testator in the devise or clause under consideration. Pratt v. Leadbetter, 
38 Maine, (3 Heath,) 9.] 

21. That where a testator's intention cannot operate to its full extent, it shall take 
effect as far as it can. Gallini u. Gallini, 3 Ad. & El. 341 ; 5 B. & Ad. 621. 

22. That a testator is rather to be presumed to calculate on the disposition of his 
will taking effect, than the contrary ; and accordingly, » provision for the death of 
devisees will not be considered as intended to provide for lapse, if another construc- 
tion can be put upon it. 

23. That a will of real estate, wherever it be made, or in whatever language it be 
written, must be construed according to the laws of the country where the property, 
upon which it is intended to operate, is situated. Bovey v. Smith, 1 Vern. 147 ; 
Trotter v. Trotter, 4 Bligh, N. S. 502. 



176 Title XXXVIII. Devise. Ch. IX. s. 2—7. 

construction is to be preferred which gives effect to every part 
of the instrument, so that each word may have its particular 
operation, and not be rejected, if any construction can possibly 
be put upon it. (a) 

3. The intention of the testator must be collected from the 
whole will, ex visceribus testamenti, so as to leave the mind quite 

satisfied about what the testator meant. And as a will 
136 * of lands * must be in writing, such collection of the testator's 

intention must be derived from the will itself; for no aver- 
ment, founded on parol evidence, can be admitted to explain 
any thing dubious" in the will, except in a few instances, which 
shall be mentioned hereafter, (b) 

4. General words in one part of a will may be restrained by 
subsequent ones, and shall be construed so as not to defeat the 
intention of the testator, where it can be collected from any 
other part of the will. But where there is a manifest general 
intent, the construction should be such as to effectuate it, though 
by that' construction some particular intent may be defeated, (c) 1 

5. The construction must be such, that the intent of the testa- 
tor may be rendered consistent with the rules of law, for otherwise 
every testator would make a new law for himself; the metes 
and bounds of property would be vague and indeterminate, 
which would end in -its total insecurity, (d) 

6. Technical words are presumed to be used in the sense 
which the law has appropriated to them, unless the contrary ap- 
pears. But where the intention of the testator is plain, it will 
be allowed to control the legal operation of the words, however 
technical, (e) 

7. Introductory words often assist in showing the intention of 
a testator ; and the courts have laid hold of them, as they do of 
every other circumstance in a will, that may help to guide their 
judgment to its right and true construction. (/) 8 

(a) 2 Burr. R. 770. (2 Kenyon, 488.) 2 P. Wms. 282. 
(6) 3 Burr. R. 1541. (Rowse's case, Lofft, 97. Hill v. Chapman, 1 Ves. 407.) 
(c) Infra, c. 12 and 14. (eZ) 2 Burr. R. 1108. 1 Doug. R. 341. 

(e) 2 P. Wms. 741. Doug. R. 341. (Den v. Blaokwell, 3 Green, 386.) 
(/) Cowp. R. 306, 637. (Brailsford v. Heyward, 2 Desau. 32. Barheydt v. Barheydt, 20 
Wend. 676.) 



1 See, as to the extent and limitations of this rule, infra, ch. 12, § 51, note. 

2 General introductory words, such as, " touching all my temporal estate," and the 



Title XXXVIII. Devise. Ch. IX. s. 8—11. 177 

8. The particular situation of a testator, the number of hia 
children, the different kinds of property whereof he was pos- 
sessed at the time of making his will, are circumstances from 
which arguments may be, drawn respecting his intention. 1 And 
it has been determined, in several cases, that the same words 
may have a different construction, when applied to different kinds 
of property, (a) 

9. An heir at law shall not be disinherited by a will, unless 
there are express words, or a necessary implication, to that effect ; 
for the title of the heir, being founded on the laws of descent, 
which are certain, is therefore not to be defeated by an uncertain 
devise, (b) 

10. A dubious expression in a will may be explained by a 
codicil, or even by a schedule annexed to such will, (c) 

* 11. It has been stated, that though all trusts are in * 137 
one sense executory, yet that there is a distinction be- 
tween a trust created without any reference to a farther execu- 
tion of it, by a conveyance directed to be made, and a trust 
whose effect is referred to another conveyance, directed to be 
made for its final execution. In the case, where a trust is cre- 
ated by will, without any reference to a further execution of it, 
the construction is the same as in devises of legal estates ; but 
where a conveyance is directed to be made, the construction is 
more liberal, in order to carry into full effect the intention of the 
testator, (d) 

(a) 1 P. Wins. 286. 4 Bro. C. C. 441. (Ambler v. Norton, 4 Hen. & Munf. 44.) 2 Vez. 
616. Cowp. E. 833. 

(b) Preo. in Cha. 473. Cowp. 99. 6 Dow, 22. (2 Binn. 19, 20.) [18 How. U. S. 385.] 

(c) Hayes v. Foord, infra, ch. 14, § 11. 

(d) Tit. 12. o. 1, ss. 87, 88. (Cudworth v. Hall, 3 Desau. 261.) 

like, though they may have some effect in the construction of the subsequent devises, 
are not of themselves sufficient to extend a devise for life to a fee. Goodright u. 
Stocker, 5 T. R. 13 ; Infra, ch. 11, $ 81 ; Frogmorton v. Wright. 3 Wils. 414 ; Doe v. 
Backner, 6 T. It. 612; Earl v. Grim, 1 Johns. Ch. 498; Ibbetson v. Beckwith, Cas. 
Temp. Talbot, 157; Forrest, K. 157; Infra, ch. 11, § 20-23 ; and see Smith v. Coffin, 
2 H. Bl. 444 ; Finlay v. King, 3 Pet. 346. See also, Beal u. Holmes, 6 Har. & J. 205, 
where this rule is more fully expounded. 

1 For this purpose, family deeds, regarding the same property, are admissible, when 
referred to in the will ; and other deeds, connected therewith, though not directly re- 
ferred to, are also admissible, in aid of the interpretation of a complex will of various 
estates, particularly when involved in the intricacies of co-existing marriage settlements. 
Noel v. Noel, 12 Price, 216. And see Smith v. Bell, 6 Pet. 68 ; 1 Greenl. on Evid- 
§ 287-291. 



178 Title XXXVIII. Devise. Ch. IX. s. 12— 14. 

12. Adjudged cases may be argued from, in the construction 
of wills, where they establish general rules for discovering the 
intention of a testator, and where once a court of justice has de- 
termined the meaning of, certain words^ or forms of expression, 
the same effect will in all future cases be given to them ; for 
the great object in matters of this kind is certainty ; and Lord 
Mansfield has observed, that if an erroneous or hasty determina- 
tion has got into practice, there is more benefit derived from ad- 
hering to it, than if it were to be overturned, (a) 

13. It has been truly said by Mr. Hargrave, that if courts, 
either of law or equity, in both of which the rules of interpreta- 
tion must be the same^ should indulge an unlimited latitude of 
forming conjectures upon wills, instead of attending to their 
grammatical or legal construction, the consequence must be end- 
less litigation. Every title to an estate, that depended on a will, 
must be brought into Westminster Hall ; for if once we depart 
from the established rules of interpretation, without a moral 
•certainty that the meaning of the testator requires it, no inter- 
pretation can be safe till it has received the sanction of a court 
of justice ; for how can a client or a purchaser be assured that 
the conjecture of the most able counsel, or the most experienced 
conveyancer, will be in all points the same as the conjectures of 
the Judges, or the Chancellor, (b) 

14. In a modern case, Lord Kenyon said : " Had there not 
been such a current of authorities as we find in the books, since 
the passing of the Statute of Wills, on the construction of wills, 
to further, as it has been called, the intentions of devisors ; per- 
haps it would have been better that the same strict words had 

been required in testamentary dispositions of land, as in 
138* those *by deed; because then the language of passing 

estates would have been so familiar, that few questions 
would have arisen on wills. For it has been often observed, 
that few questions arise on the construction of deeds, when com- 
pared to those which daily arise on wills. But we are bound to 
consider the series of authorities on this subject as the law of the 
land ; and it would be extremely dangerous now, to remove those 
landmarks of real property, on which mankind have acted for 
Buch a length of time." (c) 

(a) 1 Burr. E. 233. Hodgson v. Ambrose, infra, ch. 14, § 9. Supra, ch. 8, § 29. 
(i) Har. Tracts, 295. Fearne, Cont. Eem. 266. 1 Eden's E. 143, 367. 
(c) 5 Term R. 561. (Kingsland v. Eapelye, 3 Edw. 1.) 



Title XXXVIII. Devise. Ch. IX. s. 15—16. 179 

15. Where there are words in a will which have no meaning, 
or which are evidently contrary to the general intention of the 
testator, they will be rejected. 1 And, on the other hand, words 
omitted by mistake, and which are absolutely necessary to effect- 
uate the general intention, will be supplied, (a) 

16. Sir W. Coryton devised, for the preserving and continuing 
his real estate in his name and blood, all his lands to trustees 
and their heirs, until his son John should attain his age of twenty- 
seven, and no longer, in trust in the mean time out of the rents 
and profits for paying legacies, and to lay out the residue in the 
purchase of lands of inheritance', t^be settled in the same man- 
ner as the rest of his estate ; andj^om and after the determi- 
nation, of the estate limited to them as aforesaid, and the full' 
accomplishment of his son's age of twenty-seven, that his said 
trustees and their heirs should stand and be seised of all the 
lands devised to them and their heirs to the use and behoof of 
his said son John and his assigns, for and during the term of 
ninety-nine years, without impeachment of waste, and from and 
after the determination of that estate, to the use and behoof of 
his said trustees and their heirs, during the natural life of the 
said John Coryton, for preserving contingent remainders ; but 
nevertheless to permit the said John Coryton to take the profits 
during his natural life ; and from and after his decease, to the 
use and behoof of the first and every other son of the said John 
Coryton in tail male ; and for default of such issue, to the use 
of the heirs of the body of the said John Coryton ; and for want 
of such issue, to the use and behoof of his daughter, Susanna 
Elliot, in tail ; and for default of such issue, to the use and, 

(a) Hawes ». Hawes, infra, c. 15, $ 9. (Creswcll ». Lawson, 7 G. & J. 227.) 



1 Bat words are not to be rejected upon mere conjecture, nor unless they are actually 
irreconcilable with the rest of the will. The mere improbability that the testator could 
have meant what he has expressed, neither amounts to a cause for rejection, nor ren- 
ders the devise yoid for uncertainty. Chambers v. Brailsford, 18 Ves. 368; 19 Ves. 
652 ; 2 Mcr. 25. And see, as to the rule, that the general intention is to overrule the 
particular intention, Infra, ch. 12, § 51, note. The subject of supplying, transposing, 
and changing words, is very fully treated in 1 Jarm. on Wills, ch. 17, p. [427]-[458], 
with Perkins's notes. See also, Rathbone v. Dyckman, 3 Paige, 9 ; Lee v. Pain, 4 Hare,. 
249, 254: Robinson v. Waddelon, 8 Sim. 134; Wright v. Denn, 10 Wheat. 204; [Raw- 
son v. Clark, 38 Maine, (3 Heath,) 223 ; Dew v. Barnes, 1 Jones's Eq. (N. C.) 149 ; 
O'Neall v. Bpozer, 4 Rich. Eq. 22 ; Cleland v. Waters, 16 Geo. 496.] 



180 Title XXXVIII. Devise. Ch. IX. s. 16. 

behoof of his nephew, John Goodall, the plaintiff, for life, &c, 
taking the name of Coryton ; with power to his trustees, until his 

son should attain his age of twenty-seven years, to make 
139* * leases of the premises, and the like power to his son, 

upon his attaining the age of twenty-seven ; with a power 
also to his trustees, so long as his son should continue under 
twenty-seven, to join with him in making a jointure, and after 
his son's attaining twenty-seven, then to make such jointure 
himself, (a) 

The testator died in 1712, and his son Sir John Coryton died 
in 1739, without issue, having made ' his wife executrix and re- 
siduary legatee, who died m 1741, and devised the premises to 
the defendants, for the residue of the ninety-nine years' term, 
created by' the will of Sir W. Coryton, considering it as an abso- 
lute interest for ninety-nine years in Sir J. Coryton, and not 
determinable upon his death ; Susanna Elliot being also dead 
without issue. 

The plaintiff brought his bill to be let into possession of the 
premises, insisting, that though, as the words of the will stood, 
there seemed to be an absolute ninety-nine years' term given to 
Sir John Coryton, yet that was only a mistake in the wording 
of the will, it never being the intention of Sir W. Coryton, the 
testator, that his estate should go into another family, or to any 
wife his son should happen to marry, which it would probably do 
by an absolute devise for ninety-nine years : whereas, by the 
whole scope of the will, his intent plainly appeared, to continue 
the estate in his own name and blood, and to give the same to 
his son only for a term of ninety-nine years, determinable upon 
his death. 

Lord Hardwicke said, the question was, whether this was an 
absolute term, to end only by effluxion of time, or to cease upon 
the death of Sir J. Coryton. And, as on the one hand, it must 
be admitted that there were no express words to determine it, so 
on the other it must likewise be admitted, that it might be made 
determinable by other parts of the will, though not expressly 
limited to be so. This term was not limited to the executors 
and administrators of Sir J. Coryton, and though not much stress 
was to be laid on that, yet it was strange that in so verbose 

(a) Coryton v. HeUiar, 1745, MS. Rep. 



Title XXXVIII. Devise. Ch. IX. s. 16. 181 

a will, these words should be omitted, if the testator intended 
his son's representatives to take it. The estate, limited to' 
trustees, was a sufficient estate of freehold to support.the con- 
tingent remainders, and to preserve the estate to Sir John Cory- 
ton for his life, but not to preserve the term from forfeiture for 
his executors ; but was just in the same manner as in a 
conveyance * where the term was determinable ; and the * 140' 
limitation also to the first and every other son was the 
same as in a common settlement. The construction, therefore,, 
made by the plaintiff, answered every purpose of a settlement: 
and that made by the defendants only, left a dry reversion in the- 
first and other sons, expectant upon a term which might last 
longer than the lives of the sons or grandsons. Had this been 
intended for an absolute term, to enable Sir J. Coryton to provide 
for his younger children, it would likewise have been proper to 
have provided against the forfeiture of the term, by the trustees, 
for so many years as were to come of the term ; and if, as was 
admitted by the defendant's counsel, the limitation to the first 
and other sons, immediately following the limitation of the term, 
might have determined it upon the death of Sir J. Coryton, the 
interposing an estate to trustees for preserving contingent re- 
mainders, should not overturn the whole will, especially as that 
limitation to the trustees was unnecessary, there being an estate 
of freehold limited to them before. Indeed, before the Statute of 
Uses, an estate in feoffees and their heirs, to the use of A, for 
years, remainder to the right heirs of B, who was then living, 
the contingent remainder was good, because supported by the 
estate of freehold in the feoffees ; but since the statute, it was 
otherwise, and therefore where the first limitation was for life, 
and a remainder was limited to trustees during the life of the 
tenant for life, for preserving contingent remainders, and upon 
further trust to permit the tenant for life to receive the profits to 
his own use, this was done that if tenant for life should, by making 
a feoffment, commit a forfeiture, the trustees should, notwith- 
standing, suffer him to receive the rents. But where the first 
limitation was only for years, the remainder to trustees, during 
the life of the tenant for years, was inserted purely to support 
the contingent remainders, which the estate for years could not 
do ; but not with a view of preserving the remainders against. 
vol. m. 16 



182 Title XXXVIII. Devise. Gh. IX. s. 16. 

the tenaht for years, when those very remainders would be void 
for want of a freehold to support them. At the time of this will 
made, Si? J. Coryton was but twenty-one ; and if this was taken 
for an absolute term, from the time of his attaining twenty-seven, 
the testator, instead of giving his estate to his family, would 
have given it from them for 105 years ; which would appear very 

harsh if Sir J. Coryton had had a son, who might thus 
141 * have • * been stripped by an executor. Now the plaintiff 

was in the same case, being directed to change his name 
forthwith ; and to what purpose should he take the name imme- 
diately, if he be not to take the estate for 105 years ? Had the 
testator intended this for an absolute term, there was no occasion 
to give powers of leasing or jointuring, as both might have been 
supplied thereout. For though it would not be strictly a joint- 
ure within the statute, yet it would be a good satisfaction of 
dower in equity ; and it was absurd to suppose that he intended 
this son, whom he would not trust with his estate before twenty- 
seven, should have power to give the whole away for ninety-nine 
years, even before he was twenty-seven. It was said, that the 
testator mightintend to give his son the power of disposing of the 
estate to the heir of the family, if he should so please, but there 
was no evidence of such intent ; on the contrary, he meant to tie 
him up as fast as possible. And there was as little evidence of 
the testator's meaning he should have it, to provide for younger 
children. Then it was objected, that here was an absolute term 
given, which could not be varied or taken away by implication. 
But in King v. Melling, 1 Vent. 299, (a) we find an express es- 
tate for life enlarged to an estate tail ; and the same in Langley 
v. Baldwin, for so was the opinion of the Court of C. B., though 
in 1 Ab. Eq. 185, by mistake, it is called only an estate for life; 
which distinguishes it from Bamfield v. Popham, 2 Vern. 427- 
449, where the limitation was to all and every the son and sons ; 
and though it be said that an estate cannot be enlarged, yet 
do I find no rule, that an estate cannot be abridged by implica- 
tion ; and for instance, a devise to one and his heirs, and if he 
die without issue to remain over ; this abridged the fee to an 
estate tail. A distinction was made between a necessary and a 
probable implication, which last only was said to be in this case ; 

(a) Infra, o. 14, § 59. 



Title XXXVIII. Devise. Ch. IX. s. 16. 183 

but there was no such thing as a natural necessary implication ; 
that being the necessary consideration, which plainly appeared to 
be the testator's intent, as it was in Langley v. Baldwin. So in 
the present case, what could be more unnatural than to suppose 
the testator meant to give away his estate for 105 years ; and 
though all he had hitherto said went only on the supposition of 
its being but an implication, as the defendant's counsel would 
have it, yet he thought the question expressly determined by 
other parts of the will. He thought the cases of Spalding 
v. Spalding, (a) * Cro. Car. 185, and Whalley v. Reede, * 142 
1 Lutw. 810, applicable to the present. And in Amhurst 
v. Litton, first heard in 1728, and decreed for the plaintiff; then 
reheard in 1729, and the former decree reversed ; and, finally, in 
the House of Lords, it was admitted on all hands, that the testa- 
tor had power to dispose of the terms ; that the words of the . 
devise were very strong, giving them to his mother, for her sole 
use and benefit ; and was urged also to be a great circuity, if 
intended only to give her the sums secured by those mortgage 
terms, which might much more easily have been given in money ; 
yet was the last decree affirmed, from the great improbability 
that the testator meant to give away and sever these long terms 
from the inheritance. 

The authorities quoted for the defendants were, first, Lanes- 
borough v. Fox, (6) which was decreed upon the too great remote- 
ness of the executory devise ; that of Amble v. Jones, which 
was clearly a fee upon a fee ; and Moore, 7, which was likewise 
a very plain case. One general observation occurred on this 
will, that it was intended for a family settlement, wherein the 
limitations were framed as strict as possible. Now suppose this 
a marriage article, would the Court have decreed a settlement of 
an absolute term ? Even in a conveyance executed, he was in- 
clined to think the Court would have rectified it, because destruc- 
tive of the whole settlement ; as in Uvedale v. Halfpenny, (c) 
where the term for raising younger children's portions being by 
mistake placed behind the estate tail, the Court rectified it, 
although the son, tenant in tail, had suffered a recovery. A dis- 
tinction was made between^ settlements and wills, which last it 
was said, must be taken as they are ; but this must be understood 

(a) Infra, c. 18, § 11. (6) Infra, o. 18, § 20. (c) Tit. 32, c. 20, § 32. 



184 Title XXXVIII. Devise. Ch. IX. s. 16—17. 

with some restriction, that the construction be not barely accord- 
ing to the words, but likewise according to the testator's intent ; 
as in Sir J. Hobart v. Lord Stamford, where trustees for preserv- 
ing contingent remainders were inserted, though not directed by 
the will; and if there was any doubt, the present case was 
stronger, because part was executory, as land was to be pur- 
chased with the profits. 

Upon the whole, therefore, he was of opinion, that this was 
not an absolute term for ninety-nine years, but that it determined 
upon Sir John Coryton's death. 

17. A person devised to his wife several freehold estates, until 
his son T. P. should attain the age of twenty-one years, 
143 * in trust * to maintain him ; and then devised the same to 
his said son T. P. in fee. But if it should happen that 
his said wife should be ensient with one or more children, at the 
time of his decease, and his said son T. P. should die without 
issue, before he attained the age of twenty-one years, such child 
or children being then living, he then devised the premises to his 
wife, till such child or children should attain their ages of twenty- 
one years, in trust to maintain them ; and then devised the same 
to such children in fee. But if it happened that his son T. P. 
should die without issue, and before twenty-one, or that his wife 
should at the time of his decease, be ensient with one or more 
child or children, who should die without issue, under twenty- 
one, then he devised the premises to his wife for life, remainder 
to his nephews in fee. (a) 

The testator, at the time' of making his will, had only one child, 
the said Thomas ; but after the making thereof, and before his 
death, he had two other sons born ; namely, the plaintiffs, Ed- 
ward and John. The testator died in 1759, his wife survived 
him, but was not ensient at the time of his death. T. P. died 
without issue, in 1766. A bill was filed in Chancery, by the 
widow, on behalf Of herself and her two infant children ; praying 
that a sufficient part of the rents and profits of the real estate 
might be applied for the maintenance and education of the two 
infants. 

The Court directed a case, for Jhe opinion of the Court of 
King's Bench — Whether, in the event that had happened, any 

(a) White v. Barber, 6 Burr. 2703. 



Title XXXVIII. Devise. Ch. IX. s. 17—18. 185 

and what estate was vested in the widow, and the two infant 
sons of the testator. 

The Judges of the Court of King's Bench certified as follows : 
— " We are of opinion, that the provision made by the testator, 
being for children which were to be born after the making of his 
will, he certainly intended to comprehend all the children which 
should be born of his then wife (whether before or after his 
decease) ; for we think that a father, in making an express pro- 
vision for -any children, which his wife should be ensient with at 
the time of his decease, could never intend to give his estate to 
such children, in exclusion of, or to his nephews (as the event 
has happened) in preference to, any child or children that might 
be born in his lifetime. 

" We are of opinion therefore, that notwithstanding the defect 
of expression in this will, the children born before the 
* testator's death, are virtually included in the provision * 144 
so anxiously made by a parent for his posthumous chil- 
dren ; and that upon the true construction of this will, the plain- 
tiffs Edward and John will be entitled, from the testator's manifest 
intent, to take an estate in fee in the premises at their respective 
ages of twenty-one; and that in the mean time the plaintiff 
Eleanor, their mother, is entitled to hold the said premises, sub- 
ject to the trust of the said will, for their maintenance and edu- 
cation." (a) 1 

18. The word " or " has been frequently construed " and," 
in a conjunctive sense ; where the intention of the testator ap- 
peared to require such a construction. 2 

(a) Doe v. Micklem, 6 East, 486. Doe v. Stenlake, 12 East, 515. 



1 This case has since been overruled in Blackiston v. Haslewood, C. B., Hil. T. 1851, 
(4 Law Bep. 76, N. S.) [2 Eng. Law & Eq. 308.] In this case, the testator devised an 
estate to his wife for life, remainder to his nephew in fee ; provided, that if the wife, at 
the testator's decease, should be with child, the child, and not the nephew, should take 
the remainder. At the time of making the will, the testator had no child, and was ex- 
pecting soon to die ; but afterwards a child was horn in his lifetime, and he made a 
codicil devising after-acquired property to such child. When the testator died, the wife 
was not pregnant. It was held, that the child had no estate under the will ; and that, 
as there was no posthumous child, the devise to the nephew took effect. 

2 Where one devised all his property to his mother for life, and after her decease to 
his three sisters or their children ; it was held, that the property must be considered as 
given to the three sisters and their children ; so that the issue of a deceased sister might 
take. Penny v. Turner, 15 Sim. 368. And see, as to the transposition of " or" and 

16* 



186 Title XXXVIII. Devise. Ch. IX. s. 19—21. 

19. R. Baker devised lands to his son Richard, and his heirs 
forever ; and if Richard died within the age of twenty-one 
years, or, without issue ; that then the land should be equally 
divided amongst his three other sons. Richard .the devisee had 
issue Mary, and died within age. It was resolved, that the word 
or, should be construed as and, in a conjunctive sense, (a) 

20. A person devised his land to his son and his heirs, and in 
case his son should die before he attained the age of twenty-one, 
or have issue of his body, then over. The son lived to twenty- 
eight years, but died without issue. It was resolved, that the 
will should be construed, as if the words had been " and in case 
my said son shall happen to die before he attains his age of 
twenty-one, and have issue living." (b) 

21. The words of a will were : — "I give the said premises to 
my grandson, his heirs and assigns ; but in case he dies before he 
attains the age of twenty-one years, or marriage, and without 
issue, then and in such case " he devised the same to the defend- 
ant. The grandson attained twenty-one, and died, never hav- 
ing been married ; and it was insisted that the attaining twenty- 
one, was a performance of the condition, and vested the estate 
absolutely in the grandson, under whom the lessor of the plain- 
tiff claimed. Judgment was given accordingly, in the county 
palatine of Durham ; whereof error was brought in the Court of 
King's Bench. After several arguments, the Court affirmed the 
judgment upon the authority of Price v. Hunt, where the word 
or was construed conjunctively. And they said, they would read 
this without the word or, as if it run : — " and if he dies before 
twenty-one, unmarried, and without issue ; " which he did not 

do, for one of the circumstances failed. And all put 

145 * together * were but in the nature of one contingency ; and 

it was considerable, that this was not a condition prece- 

(a) Soulle v. Gerrard, Cro. Eliz. 525. (6) Price v. Hunt, Pollexf. 645. 



-" and," 1 Jarm. on Wills, ch. 17, p. 427-456, 2d ed. and the cases collected in the notes 
of Mr. Perkins. See also, Brewer v. Opie, 1 Call, 212 ; Jackson v. Jackson,, 1 Vez. 
217 ; Hetherington u. Oakman, 1 Y. & C. 299 ; Dobbins v. Bowman, 3 Atk. 408 ; 
{Lachlan v. Reynolds, 15 Eng. Law & Eq. 234 ; Morris v. Morris, 21 lb. 152 ; Staple- 
ton v. Stapleton, 11 lb. 90; Linstead v. Green, 2 Md. 82; Janney v. Sprigg, 7 Gill, 
197 ; Shands v. Rogers, 7 Rich. Eq. (S. C.) 422.] 



Title XXXVIII. Devise. Ch. IX. s. 21—23. 187 

dent, but to destroy an estate, devised by the former words in 
fee. (a) 

22. A person devised two-thirds of his estate to his son M. P., 
to hold to him, his heirs and assigns forever. But in case his 
said son should happen to die before he should attain the age of 
twenty-one years, or without issue, then he gave and devised the 
said two-thirds to his wife. By a codicil, the testator, reciting 
this clause, proceeded thus : — " Now my further mind and will 
is, that in case my said son shall happen to die before the age of 
twenty-one, or without issue as aforesaid, and also in case of the 
decease of my said wife, then I give and devise the said two- 
third parts to all the sons and daughters of T. D." (b) 

The son died after the age of twenty-one, but without issue ; 
and the question was, whether the -devise over to the mother 
should take effect, upon one of the contingencies happening 
only. 

Lord Hardwicke said, he thought it a very plain case. The 
testator had a wife and a son living : If he had gone no further 
than the first clause, he had given him an absolute fee. But 
then followed the executory part. Upon the words in the codi- 
cil there could be no doubt at all ; it was to go over, upon two 
contingencies ; the words as aforesaid took in all the former dis- 
position. Suppose he had said no more than, " in case my son 
died under twenty-one as aforesaid," would this have disinherited 
the issue, if the father had died under twenty-one, and gone over 
to the mother ? By no means ; for he would have supplied the 
words — and without issue ; and should have been justified by 
the expression, as aforesaid. He held it to be a vested estate in 
fee in the son, as he arrived at his age of twenty-one ; and that 
though he died without issue, yet it did not go over to the mother, 
but descended to his heir at law. 

23. A woman devised a house to her son Robert, his heirs and 
assigns forever; and in case he should happen to die in his 
minority and unmarried, or without issue, she gave it over, (c) 

Lord Hardwicke, held, that the estate was to go over only upon 
one contingency ; that of Robert's dying during his minority, 
subject to the qualifications of his being unmarried, and without 

(a) Barker v. Suretees, 2 Stra. 1175. Ante, s. 20. (6) Walsh v. Peterson, 3 Atk. 193. 
(c) Framlingham v. Brand, 3 Atk. 390. 



188 Title XXXVIII. Devise. Ch. IX. s. 23—24. 

issue at his death ; and consequently the estate vested absolutely 

in Robert, upon his coming of age. (a) 
146 * * 24. A person devised to his brother Benjamin Smith 
all his real and freehold estates ; but in case his said 
brother Benjamin should die before he attained the age of twenty- 
one years, or without leaving issue living at his death, then he 
bequeathed his real estate to his mother. Benjamin Smith the 
devisee, entered into possession of the devised premises, and 
attained his age of twenty-one years, but died without issue. (6) 

The Courts of Common Pleas and King's Bench in Ireland 
determined, that as the devise over was intended only to take 
place on the happening of one contingency, consisting of two 
branches, namely, Benjamin's dying under twenty-one, and with- 
out leaving issue, and as in- this view only the latter part of the 
contingency had happened, and the former branch becoming im- 
possible, the devise over could not operate. 

On a writ of error to the House of Lords, it was contended on 
behalf of the plaintiff in error, that the construction adopted in 
Ireland was so much against the language of the will, as to be 
the direct contrary to that which the will peremptorily directed. 
According to the words, the devise over was to operate on the 
happening of either of two events ; either in the event of Benja- 
min's dying under twenty-one, or dying without leaving issue. 
But according to the construction in Ireland, the words of con- 
tingency were made to be, — " In case my said brother shall die 
before he attains twenty-one, and without issue." The testator's 
disjunctive or was struck out of the will, and instead of it, the 
conjunctive and was inserted. The testator's two contingencies 
were consolidated into one contingency ; and so the testator was 
made to speak the very reverse of that which he had really 
spoken. 

On behalf of the defendant in error, it was said, that the 
general intent of the testator, as far as it could be collected from 
the whole will, must prevail, even against any particular clause ; 
which if taken separately might have or seem to have, a contrary 
tendency. Now in this case, the general intent of the testator 
appeared with sufficient clearness to have been, to prefer his 
brother Benjamin and his issue before his mother ; and that the 

(a) Brownsword v. Edwards, infra, c. 20. (A) Fairfield^;. Morgan, Dom. Proo. 1805. 



Title XXXVIII. Devise. Ck. IX. s. 24. 189 

mother was not to take, to the exclusion of the children of Ben- 
jamin. This intent, then, ought to be carried into effect, and it 
could not be carried into effect, without construing the word or 
in a conjunctive sense ; since otherwise Benjamin might 
have * died under age, leaving children, and by reason of * 147 
his dying under age, the children would have been ex- 
cluded, (a) 

To give the word or a conjunctive sense, when the context and 
intent of the whole instrument required it, was neither a strained 
nor a novel construction. There was perhaps no word in the 
language of more equivocal effect than the word or. By a slight 
variation of the phrase, in almost any case, it might be made to 
have either a conjunctive or disjunctive operation. A devise 
over if A shall die before his attaining his full age, or day of 
marriage, did not take effect by strict grammar, if A either came 
to age or married ; but change the expression to, — " If A shall 
die before attaining his full age, or (before attaining- Ms) day of 
marriage;" then, in strict grammar, the devise over takes effect, 
unless both happen. Yet the words between the parentheses, 
which were used in the latter mode of expression, must be under- 
stood in the former, in order to make sense of the passage. The 
consequence was, that courts had at all times paid little atten- 
tion to a word, the effect of which depended on distinctions so 
small and subtle ; and had construed the sentence in that way 
which seemed most conformable to sense, without much atten- 
tion to the conjunctive or disjunctive meaning of the particle 
used. This had been done even in acts of Parliament. In wills, 
it was grown into a settled rule of construction, that where there 
was a devise of an inheritance to any person, and a devise over, 
depending on his age, or having issue, whether these two events 
were connected by a conjunctive or disjunctive particle, the estate 
of the first taker is absolute, if either of the events take place ; 
and this for one plain reason, expressed or implied in all the cases, 
namely, that otherwise if the first taker should die under age, 
leaving issue, such issue would be disinherited, (b) f 

(a) Doe v, Halley, 8 Terra K. 5. 

(6) Denn o. Kemeys, 9 East, 366. Eight v. Day, 16 East, 67. 

[t For instances of bequests of personalty wherein "or" was construed "and," see 



190 Title XXXVIII. Devise. Ch. IX. s. 25—28. 

The judgment was affirmed. 

25. [ So, on the other hand, the word " and" has in some cases 
been construed " or," in order to effectuate the apparent intention 
of the testator. 

26. Thus, where the devise was to trustees and their heirs 
upon trust, to receive the rents and' profits until J. B. 

148* should attain * twenty-one; and if he should live to at- 
tain the said age, or have issue, to him and the heirs 
of his body ; but if he should happen to die before the age of 
twenty-one years, and without issue, then over. Lord Hard- 
wicke held, that and should be construed or upon apparent 
intention, so that in the event of J. B. attaining twenty-one, 
and dying without issue, the remainder over, expectant on the 
estate tail in J. B., should take effect, (a) J 

27. But in a subsequent case, very similar to the preceding, 
the devise was taken literally, and the word "and" was con- 
strued in its literal sense. 

28. In the case referred to, the devise was to trustees and their 
heirs in trust for J. J., and the heirs of his body lawfully issuing 
forever ; and if J. J. should happen to die before he attained his 
age of twenty-one years, and without issue, then over. J. J. 
attained twenty-one, but died without issue. (&) 

On the authority of the preceding case, it was contended that 
" and " should be construed " or." Lord Ellenborough admitted, 
that the cases were very similar, and that the only distinction 
was, that the limitation over in Brownsword v. Edwards, was in 
favor of a daughter, who, without the construction in that case 
put 'upon the word "and" would have been unprovided for; 
nevertheless, his lordship decided, that in the principal case, the 
word "and" was to be taken literally. It seems, therefore, a 

(a) Brownsword v. Edwards, 2 Vez. 243. (6) Doe v. Jessup, 12 East, 288. 



Richardson v. Spraag, 1 P. Will. 433 ; Eocard v. Brooke, 2 Cox, 213 ; Horridge v. Fer- 
guson, Jacob, 583 ; Read v. Snell, 2 Atk. 643, 645 ; Weddell v. Mundy, 6 Ves. 341 ; 
Monkhouse v. Monkhouse, 3 Sim. 119 ; and 2 Rop. Leg. 364, ed. 1828.] 

1 See also Jackson v. Jackson, 1 Vez. 215, and the cases collected by Mr. Perkins, in 
1 Jarm. on Wills, [443], note 1, (2d ed.); Stnbbs o. Sargon, 2 Keene, 272; Hether- 
ington v. Oakman, 1 Y. & C. 299 ; Griffith v. Woodward, 1 Yeates, 319; Dobbins v. 
Bowman, 3 Atk. 408 ; Prebble v. Boghurst, 1 Swanst. 309, 330 ; Jackson v. Topping, 
1 Wend. 388, 396. 



Title XXXVIII. Devise. Ch. IX. s. 28—32. 191 

question whether Brownsword v. Edwards is not overruled by 
the case last stated.f 

29. For other instances in bequests of personal estate, in 
which "and" has been construed "or," see the authorities cited 
below; J and for others, in which the words "and" and "or" 
have been construed literally, see the authorities also cited in the 
note.] § 

30. A particular estate will be transposed, and placed 
either "before or after some other estate given by the *149 
will, if such transposition be necessary to fulfil the intent 

of the testator. 

31. A person devised lands to his eldest son for life, remainder 
to the first and other sons of his said eldest son in tail ; remain- 
der to two trustees for their lives, upon trust to support the said 
remainders. The Court of Chancery held, that the will should 
be construed so as that the estate devised to the trustees should 
precede the contingent remainders, (a) 

32. Lord Coke says, where there are two different devises of 
the same thing; the last shall take place. Mr. Hargrave observes 
on this passage, that there is a great contrariety of opinion on this 
subject ; that some hold with Lord Coke, that the second devise 
revokes the first ; others think that both devises are void, on ac- 
count of the repugnancy; but the opinion supported by the 
greatest number of authorities is, that the two devisees shall 
take in moieties. It appears however to be now settled, that if 
two parts of a will are totally inconsistent, and cannot possibly be 
reconciled, the proper rule is that the latter shall prevail, (b) ' 

(a) Green v. Hayman, 2 Cha. Ca. 10- 

(6) 1 Inst. 112, b. Plowd. 451. Owen, 84. 2 Atk. 374. Sims v. Doughty, 5 Ves. 243. 

6 Ves. 102. 

[t In Woodward v. Glasbrook, 2 Vern. 388, the word or was taken in its literal 
sense.] , 

[fHepworth v. Taylor, 1 Cox, 112; Maberly u. Strode, 3 Ves. 450; Bell v. Phyn, 

7 Ves. 454, 458.] 

[§ Doe v. Cooke, 7 East, R. 269; Dillon v. Harris, 4 Bligh, N. S 321 ; Doe v. Raw- 
ding, 2 B. & Aid. 441 ; Longmore v. Broom, 7 Ves. 124 ; Newman v. Nightingale, 1 Cox, 
341 ; Montagu v. Nucella, 1 Russ. 165 ; Gridlestone v. Doe, 2 Sim. 225 ; 2 Rop. Leg. 
368, ed. 1828.] (Dee v. Jessup, 12 East, 288.) 

1 This rule is merely a resort in the last extremity, after all other rules of interpre- 
tation have been applied in vain, and the real intention of the testator still remains un- 
ascertained. See ante, tit. 32, ch. 12, § 26, note; 1 Jarm. on Wills, [412,] 2d ed., note 
by Mr. Perkins, and cases there collected. But how fat the general intent may control 



192 Title XXXVIII. Devise. Ch. IX. s. 33—36. 

33. The general principles, which have been stated in Title 32, 
c. 24, respecting perpetuities, have been as fully adopted in the 
construction of wills, as in that of deeds ; 1 so that it may be laid 
down, that lands cannot be devised in such a manner as to render 
them unalienable for a longer period than a life or lives in being, 
and twenty-one years and some months after, (a) f 

34 It has been stated in a former Title, that a condition of 
non-alienation cannot, in a deed, be annexed to a grant in fee 
simple. This rule is also generally admitted, in the construction 
of wills. But it has been held, in a modern case, that a condition 
of non-alienation, except to sisters or their children, annexed to 
a devise to two women and their heirs, was good, (b) 

35. A condition of non-alienation, annexed to an estate tail, is 
also void. 

36. An estate was devised to John Harris, in such words 
that he was held to take an estate tail ; with a proviso, that if 
the said John Harris or his issue should at any time thereafter 
alienate, mortgage, encumber, or otherwise commit any act or 
deed whatsoever, whereby to alter, change, or defeat the same 

(a) 1 Inst, 233, a. (6) Tit. 13, u. 1, s. 22. Doe v. Pearson, 6 East, 173. 



the particular intent, see the observations of Ld. Denman, in Doe v. Gallini, 5 B. & 
Ad. 621, quoted infra, ch. 12, § 51, note. Though two several devises be in words 
prima facie repugnant ; yet if, upon the whole will, and upon consideration of the subject 
of the devise, an intent of the testator can be discovered, the court will so interpret the 
apparently inconsistent words, as to fulfil the whole intention. Doe v. Nevill, 12 Jur. 
181. And see, accordingly, Malcolm v. Malcolm, 3 Cush. 472. 

1 See, as to devises void, or not, for remoteness, Norton v. Fripp, 1 Speers, 250 ; 
Threadgill v. Ingram, 1 Ired. 577 ; Sutton v. Wood, Cam. & Nor. 202 ; Zollicoffer v. 
Zollicoffer, 4 Dev. & Batt. 438; Moore v. Howe, 4 Monr. 199; Mazyck v. Vanderhorst, 
1 Bail. Eq. R. 48 ; Adams v. Chaplin, 1 Hill, Ch. E. 268 ; Brashear v. Macey, 3 J. J. 
Marsh. 91 ; Vawdrey v. Geddes, Tarn. 361 ; 1 Rus. & My. 203, S.C. ; Warren v. Coley, 
10 Leg. Obs. 44; Judd v. Judd, 3 Sim. 525; Bland v. Williams, 3 My. & K. 411; 
Webb v. Webb, 2 Beav. 493 ; Newman v. Newman, 10 Sim. 51 ; Moneypenny v. Gering, 
16 M. &W. 418; Case v. Drosier, 5 My. & C. 246; Browne v . Stoughton, 14 Sim. 
369 ; Bull v. Pritchard, 5 Hare, 567. 

See alse 1 Jarm. on Wills, ch. 10, sec. 2, p. [219]-[263,] 2d ed. by Perkins, where 
this subject is fully treated. [See also Harris v. Clark, 3 Selden, (N. Y.) 242 ; Jennings 
v. Jennings, lb. 547 ; King v. Rundle, 15 Bart* 139 ; Duke of Cumberland v. Graves, 
9 lb. 595 ; McSorley v. McSorley, 4 Sandf. Ch. 414 ; McSorley v. Wilson, lb. 515 ; 
Field v. Eield, lb. 528 ; Cox v. Buck, 5 Rich. 604 ; James v. Wynford, 17 Eng. Law & 
Eq. 444 ; Gooch v. Gooch, 8 lb. 138.] 

[t Seaward v. Willock, 5 East, 198 ; Beard *. Wescott, 5 Taunt. 392 ; 5 B. & Aid. 
801 ; 1 Turn. 25 ; Mortimer v. West, 2 Sim. 274.] 



Title XXXVIII Devise. Ch. IX. s. 36—39. 193 

* bequests and limitations, or any of them therein before * 150 
limited and appointed of the same premises, that then and 
in such case he, the said John Harris, and all and every such other 
person or persons so alienating, mortgaging, or otherwise encum- 
bering, altering', changing, or defeating the same bequests, or any 
of them, should pay or cause to be paid, and he thereby charged 
the said premises with the payment of £2,000 unto such person 
or persons, and his and their heirs, who might, could, should, or 
ought next to take, by virtue or means of any of the bequests, 
devises, or limitations, thereinbefore by him given, devised, or 
bequeathed, (a) 

Lord Keeper Henley held this condition to be void. 

37. It has been shown in a former title, that shifting uses may 
be limited by will, as well as by deed ; provided a perpetuity be 
not thereby created ; and the cases in which this doctrine has 
been established are there stated, (b) 

38. Although an omission will be supplied, for the purpose of 
effectuating the intention of the testator, where such intention is 
consistent with the rules of law ; yet if the intention be to create 
a perpetuity, the omission will not be supplied; but such a con- 
struction will be adopted, as will carry the general intention into 
effect. 

39. Joshua Brown devised lands to his nephew William 
Brown, the son of his brother Reginald, for and during the term 
of his natural life, and from and after the death of the said W. 
Brown ; then to the first son of the body of the said W. Brown, 
and the heirs male of the body of such first son ; and for want 
of such issue, then to the second, third, fourth, and every other 
son and sons of the said W. Brown, according to their seniority ; 
and to the heirs male of the body of such second, &c. and other 
sons of the said W. Brown; and for want of such issue, to the 
second son of his brother Reginald, for and during the term of 
his natural life, and from and after the death of the said second 
son of his brother Reginald, then to the first son of the body of 
such second son of his brother Reginald, and to the heirs male 
of the body of such second son ; and for default of such issue, 

•to the third, fourth, fifth, and every other younger son or sons of 

(a) King v. Burchell, 1 Eden, R. 424. Infra, u. 14. • 
(J) Tit. 16, u. 5, s. 26. Tit. 32, o. 23. Tit. 36, c. 8. 

VOL. III. 17 



194 Title XXXVIII. Devise. Ch. IX. s. 39—41. 

the said second son of his brother Reginald Brown, according 
to their seniority, and to the heirs male of the bodies of the 
151 * said third, fourth, fifth, and other sons of the * said second 
son of Reginald ; with remainder to the eldest or next son 
or sons of Reginald, for life ; and after his or their deaths, to the 
heirs male of their bodies, (a) 

Reginald Brown had no son but William, at the time of the 
testator's death, but afterwards had a second son named Thomas ; 
William Brown died without issue male ; and the question was, 
what estate Thomas Brown took under the will. 

The Court of King's Bench was of opinion, that Thomas 
Brown took an estate tail. A writ of error was brought in the 
House of Lords ; and the following question was put to the 
Judges: — "Whether Thomas, the second son of Reginald 
Brown, took any and what estate, under the will of Joshua 
Brown." Whereupon the Lord Ch. B. delivered their unanimous 
opinion — That Thomas, the second son of Reginald Brown, 
took an estate tail, under the will of Joshua Brown." Where- 
upon the judgment of the Court of King's Bench was affirmed. 

40. In cases where a perpetuity is attempted, there is a material 
difference between a deed and a will ; for in the case of a deed, 
all the limitations are totally void; but in the case of a will, the 
courts do not, if they can possibly avoid it, construe the devise 
to be utterly void, but expound the will in such a manner as to 
carry the testator's intention into effect, as far as the rules respect- 
ing- perpetuities will allow; which is called a construction 
cy pres. 1 

41. A person devised his estate to the Drapers' Company and 
their successors, in trust to convey the same to his godson M. H. 
for life, and upon the death of the said M. H., to his first son for 
life ; and so to the first son of that son for life, &c. ; and if no 
issue male of the first son, then to the second son of the said 
M. H. for life, and so to his first son, &c. On a bill brought for 
an execution of the trusts of this will, Lord Cowper said, though 
an attempt to make a perpetuity for successive lives be vain, yet 
so far as is consistent with the rules of law, it ought to' be com- 

(a) Chapman u. Brown, 3 Burr. 1626. 3 Bro. Pari. Ca. 269. Cases and Opinions, vol. 2, 



[In cases of devises to charitable purposes the doctrine of cy pres does not obtain 
in North Carolina. Bridges v. Pleasants, 4 Ire. Bq. 26.] 



Title XXXVIII. Devise. Ch. IX. s. 41—44. 195 

plied with : and therefore let all the sons of these Humberstons 
that are already born, take estates for their lives ; but where the 
limitation is to the first son unborn, there the limitation to such 
unborn son shall be in tail male, (a) 

42. In a modern case, where there was a devise of land to 
trustees in fee, in trust for A, an infant, for ninety-nine 
years, if * he should so long live ; and after that term to * 152 
his first, second, third, and other sons, and the issue male 

of their bodies, for the like term of ninety-nine years, as they 
should be in seniority of birth, the Judges of the Court of K. 
B. certified that the devise to the first unborn son of A was 
good ; but the subsequent limitations were void, (b) 

43. So, where there is a proviso in a will, of which the effect 
' would be to prevent a power of alienation for a longer time than 

the law allows, such proviso will be deemed void, and the rest 
of the will good. 

44. Sir John Lade devised certain lands to trustees and their 
heirs, to the use of his cousin John Inskip, for life, remainder to 
trustees to preserve contingent remainders, remainder to his first 
and other sons in tail male, remainder to the use of the trustees 
and their heirs, during the life of Ann Nutt, in trust to apply the 
rents and profits for the benefit of such of her sons, or such 
other person, as for the time being should be in esse, and would 
be the next tenant for life, or in tail, by virtue of the limitations 
in his will, in case* Ann Nutt were dead ; and from and after her 
decease, then to the use of her first and other sons successively 
in tail ; provided, that during the time the said John Inskip should 
be Under the age of twenty-six, and so often, and during such 
time as the person who for the time being would, by virtue of 
the said will, have been entitled in possession to the devised 
premises, as tenanj; for life, or tenant in tail, should be under the 
age of twenty-six years, the trustees and their heirs should and 
might enter on the premises, and take the rents and profits and 
apply them to the following uses, viz. : to allow to such persons 
certain annual sums till they attain the age of twenty-six, and to 
lay out the residue in the purchase of lands, to be settled as the 
estate devised, (c) 

(a) Humberston v. Humberston, 1 P. Wms. 332. Vide Pitt v. Jackson, 2 Bro. C. C. 61. 
(6) Somerville v. Lethbridge, 6 Term R. 213. Beard v. Wesoott, ante, § 33. 
(c) Lade v. Holford, 3 Burr. 1416. 1 Black. E. 428. Amb. i19. 



196 Title XXXVIII. Devise. Ch. IX. s. 44—45. 

John Inskip died, leaving his wife ensient with a son, who 
while an infant, exhibited his bill in Chancery, praying to be let 
into possession of the estate, when he should arrive at the age of 
twenty-one. Lord Henley directed a case to be sent to the 
Court of K. B. for their opinion on this question : — Whether 
Rose Fuller, the heir of the surviving trustee, did, upon the birth 
of the plaintiff, take any and what estate in the devised premises 
by virtue of the said proviso. 

It was contended, that no estate vested in the trustees, 
153 * the * proviso being void ; whether it meant to vest a de- 
terminable fee in the trustees, or a mere chattel interest : 
because, in the first case, it tended to a perpetuity, by taking 
away the power of alienation five years longer than the policy of 
the law admitted ; in the latter case, it had the same inconve- 
nience, and was in derogation of the legal powers of tenant 
in tail. 

The Court of K. B. appears to have been of this opinion, for 
they certified that Rose Fuller did not take any estate in the 
premises devised, by virtue of the proviso in the will of the said 
testator.f ] 

45. It has been always held, that no averment can be admitted 
to explain a devise, as the construction of it must be collected 
from the words of the will ; for it would be full of great incon- 
venience that none should know, by the written words of the 
will, what construction to make, or advice to give, but it should 
be controlled by collateral averments, out of the will. And this 
doctrine was fully established by the Statute of Frauds, (a) 2 

(o) Cheyney's case, 5 Eep. 68. Plowd. 345. 1 Mod. 310. (Comport v. Mather, 2 W._& 
S. 450.) 1 Nev. & Man. 567. 



[t The doctrine of perpetuities will be more fully considered in the chapters respect- 
ing executory devises. — Note to former edition.] 

1 A testator devised lands to his wife for life, remainder to his five children in equal 
shares; "always intending that none of his children shall dispose of their part of the 
real estate in reversion, before it is legally assigned to them." It was held, that the 
children took a vested remainder, and that the restraint on their alienation was void; 
Hall v. Tufts, 18 Pick. 455. [See also Walker v. Vincent, 19 Penn. (7 Harris) 369.] 

2 As to the admissibility of Parol Evidence to alter or explain writings, see 1 Greenl. 
on Evid. ch. 15, per tot. As to the admissibility of the testator's declarations, to show 
that a will was obtained by fraud, or that its revocation or alteration was fraudulently 
prevented, see Smith v. Eenner, 1 Gall. 170. Supra, ch. 8, § 21, note. 



Title XXXVIII. Devise. Ch. IX. s. 46—50. 147 

46. Papers and writings were offered in evidence, to prove 
what was said to be the intention of a testator. But it was 
decreed, that they should not influence the construction of a will 
in writing ; for that would be to make them part of the will 
itself. And it is expressly required by the Statute of Frauds^ 
that every part of a will shall be in writing, (a) 

47. The deposition of a person who prepared a will was offered 
to be read, to prove the declarations of the testator, at the time 
he gave the instructions for his will, respecting his intention of 
giving his wife the several devises and bequests mentioned in the 
will, over and above her jointure : but Lord Bathurst would not 
suffer such evidence to be read, (b) 

48. In the case of an ambiguitas latens, an averment, supported 
by parol evidence, is admissible, to explain such ambiguity. 1 If 
therefore a testator, having two sons- of the. name of John, devises 
generally to his son John, there parol evidence will be admitted, 
to prove which John the testator meant, (c) 

49. A person, being seised in fee, as heir of his mother's mother, 
devised the lands to trustees in fee, in trust to pay annuities ; 
and the residue to go to the testator's right heirs, of his mother's 
side, forever. The testator had two heirs of his mother's 

side, *one who was heir of the mother's father, and the *154 
other, heir of the mother's mother. Parol evidence was 
admitted to prove that the testator, when he made his will, de- 
clared that the heir of his mother's mother should have his 
estate, because it came from thence, (d) 

50. Parol evidence has also been admitted to clear up a mis- 

(o) Bertie v. Falkland, 1 Salk. 231. 

(6) Broughton v. Errington, tit. 7, c. 3. 8 Ves. 22. 

(c) Tit. 32, «. 19. 5 Kep. 68, b. Hob. 32. 

(d) Harris v. Epis. Lincoln, 2 P. Wms. 135. Minshull v. Minshull, 1 Atk. 411. Doe ». 
Morgan, 1 Cr. & Me. 235. 

1 See, as to ambiguities, 1 Greenl. on Evid. § 297-301. [Parol evidence cannot be 
received to show that the word " children " was inserted in a will by mistake instead 
of "sons." Weatherhead v. Baskerville, 11 How. U. S. 329. Evidence of extrinsic 
circumstances, such as the amount and condition of the estate, &c, cannot be re- 
ceived to control the interpretation of the will. It is only admissible to explain am- 
biguities arising out of extrinsic circumstances. Allen v. Allen, 18 How. U. S. 385 ; 
Walston v. White, 5 Md. 297 ; President, &c. v. Norwood, 1 Busbee, Eq. (N. C.) 65 ; 
Spencer v. Higgins, 22 Conn. 521 ; Holton v. White, 3 Zabr. 330 ; Trustees v. Peaslee, 
15 N. H. 317 ; Button v. American Tract Society, 23 Vt. (8 Washb.,) 336.] 

17* 



198 Title XXXVIII. Devise. Ch. IX. s. 50—51. 

take in the description of a devisee. And Sir J. Strange, M. R., 
has said, that in no instance parol evidence should be admitted 
in contradiction to the words of a will; but if the words were 
doubtful and ambiguous, and unless some reasonable light were 
let in to determine that, the will would fall to the ground ; 
any thing to explain, not to contradict the will,* was always 
admitted, (a) 

51. George Evans devised to his granddaughter, Mary Thomas, 
of Llechlloyd, in Merthyr parish, the reversion of a house. At 
the time of his death, the devisor had a granddaughter of the 
name of Eleanor Evans, who lived at Llechlloyd, in Merthyr 
parish ; and a great granddaughter, Mary Thomas, an infant of 
two years, being the only person of that name in the family ; but 
it appeared, that she lived at Green Castle in the parish of 
Llangain, four miles from Merthyr parish; in which latter parish 
she had never been in her life, (b) 

At the trial, the plaintiff's counsel proposed giving parol evi- 
dence, to show a mistake in the name of the devisee ; that when 
the will was read over to the devisor by Philips, the person who- 
drew it, and who was dead, the devisor said there was a mistake 
in the name of the woman to whom the house was given ; that 
Philips then said he would rectify it ; but the devisor answered, 
there was no occasion, as the place of abode and the parish 
would be sufficient. To this evidence the defendant's counsel 
objected, contending that there was not that" ambiguitas latens 
which authorized the receiving of parol evidence ; that if the 
doubt had arisen from there being two persons of the name of 
Mary Thomas, parol evidence might be admitted, to explain 
which of them was meant ; but here the inaccuracy of the de- 
scription was not such as'to raise a sufficient degree of doubt to 
let in the parol evidence, for granddaughter would properly 
enough signify great granddaughter; and the mistake of the 
residence was only in a matter of description, was perpet- 
155 * ually varying, * and could not raise any doubt, where a 
name, not applicable to any other than the defendant, 
was used ; which was a circumstance of the greatest weight in 
these cases. 

(a) 2 Vez. 217. Stephenson v. Heathcote, 1 Eden, 38. 
(6) Thomas v. Thomas, 6 Term E. 671. 



Title XXXVIII. Devise. Ch. IX. s. 51—53. 199 

Mr. Justice Lawrence received the evidence, subject to the 
opinion of the Court on its admissibility, in case the jury should 
be of opinion that the name Mary Thomas had, by mistake, been 
inserted, instead of Eleanor Evans. 

The defendant's counsel then offered evidence of declarations 
made by the devisor at other times, previous to the making of 
his will, expressive of his regard for his great granddaughter 
the defendant, and of his intention of giving her the house in 
question. This was rejected by the Judge, who was of opinion, 
that nothing dehors the will could be received to show the in- 
tention of the devisor ; which could only be collected from the 
words of the will itself, after the removal of any latent ambiguity 
there might be in the description of persons, or other terms used 
in the will. 

The jury found for the heir at law, on the ground that the 
will was void for uncertainty. Upon a motion for a new trial, 
Lord Kenyon said, that as there were two parts of the descrip- 
tion, not answering to Mary Thomas, who was named in the 
will, the Court was left to conjecture who was meant by the 
devisor ; but the law would not allow an heir at law to be disin- 
herited by conjecture. With regard to the other question, 
respecting rejection of evidence, the learned Judge did right in 
rejecting it ; the supposed declarations having been made by the 
testator long before the will was made ; though had they been 
made at the time of making the will, he should have thought 
them admissible in evidence, (a) 

52. Where parol evidence is admitted to explain a will, it may 
be encountered by parol evidence. 

53. On a motion for a new trial, in ejectment, wherein the 
lessor of the plaintiff was heir at law, and the defendant's title 
arose upon a will, which devised the premises to John Cluer, of 
Calcot, under whom the defendant claimed ; the plaintiff gave 
evidence, that at the time of making the will, there were two 
John Cluers, father and son, and that therefore the devise was to 
the father, who died before the testatrix, and so the devise was 
lapsed and void. Upon which the defendant offered to 

* prove by parol evidence that the testatrix intended to leave * 156 
it to John Cluer the son. But the Judge would not suffer 

(a) 1 Maule & Selwin, 301. Vide Doe v. Brown, 11 East, 441. 



200 Title XXXVIII. Devise. Ch. IX. s. 53—54. 

it ; and a verdict was found for the plaintiff. Per totam cwiam, 
the Court was mistaken; the objection arose from parol evidence, 
and ought to be encountered by the same, (a) 

54. [We may lastly observe, that in construing devises it 
makes no difference, that the testator has not the legal estate.] (b) 

(a) Jones t>. Newman, 1 Black. R. 60. 

(S) Jervoise v. Duke of Northumberland, 1 J.-& W. 573. 



Note. In the treatise of "Vice-Chancellor Wigram, on The Kules of Law respecting 
the Admission of Extrinsic Evidence in aid of the Interpretation of Wills, (a work 
which is earnestly commended to the student's perusal, ) the whole subject is examined 
with unsurpassed power and acumen. It is discussed under the following propositions, 
which are conclusively maintained, both on principle and authority. 

I. " A testator is always presumed to use the words, in which he expresses himself 
according to their strict and primary acceptation, unless from the context of the will 
it appears that he has used them in a different sense ; in which case the sense in 
which he thus appears to have used them will be the sense in which they are to be 
construed. 

II. " Where there is nothing in the context of a will, from which it is apparent, that 
a testator has used the words in which he has expressed himself in any other than 
their strict and primary sense, and where his words so interpreted are sensible with ref- 
erence to extrinsic circumstances, it is an inflexible rule of construction, that the words of 
the will shall be interpreted in their strict and primary sense, and in no other, although 
they may be^ capable of some popular or secondary interpretation, and although the 
most conclusive evidence of intention to use them in such popular or secondary sense 
be tendered. 

III. " Where there is nothing in the context of a will, from which it is apparent 
that a testator has used the words in which he has expressed himself in any other 
than their strict and primary sense, but his words, so interpreted, are insensible with 
reference to extrinsic circumstances, a Court of law may look into the extrinsic cir- 
cumstances of the case, to see whether the meaning of the words be sensible in any 
popular or secondary sense, of which, with reference to these circumstances, they are 
capable. 

IV. " Where the characters in which a will is written are difficult to be deciphered, 
or the language of the will is not understood by the Court, the evidence of persons 
skilled in deciphering writing, or who understand the language in which the will is 
written, is admissible to declare what the characters are, or to inform the Court of the 
proper meaning of the words. - 

V. "For the purpose of determining the object of a testator's bounty, or the 
subject of disposition, or the quantity of interest- intended to be given by his will, 
a Court may inquire into every material fact relating to the person who claims 
to be interested under the will, and to the property which is claimed as the subject 
of disposition, and to the circumstances of the testator and of his family and, affairs; 
for the purpose of enabling the Court to identify the person or thing intended by the 
testator, or to determine the quantity of interest he has given by his will. 

" The same (it is conceived) -is true of every other disputed point, respecting which 
it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary 
to the right interpretation of a testator's words. 



Title XXXVIII. Devise. Ch. IX. Note. 201 

VI. " Where the words of a will, aided by evidence of the materal facts of the case, 
are insufficient to determine the testator's meaning, no evidence will be admissible to 
prove what the testator intended, and the willjf except in certain special cases — see 
Proposition VII.) will be void for uncertainty. 

VII. " Notwithstanding the rule of law, which makes a will void for uncertainty! 
where the words aided by evidence of the material facts of the case, are insufficient to 
determine the testator's meaning — Courts of law, in certain special cases, admit extrinsic 
evidence of intention to make certain the person or thing intended, where the description 
in the will is insufficient for the purpose. 

" These cases may be thus denned : where the object of a testator's bounty, or the 
subject of disposition, (i. e. person or thing intended,) is described in terms which are 
applicable indifferently to more than one person or thing, evidence is admisible to prove 
which of the persons or things so described was intended by the testator." See Wi- 
gram on Wills, p. 11-14. 

This learned jurist deduces, synthetically, at the end of his work, these General Con- 
clusions : — 

I. " That evidence of material facts is, in all cases, admissible in aid of the exposition 
of a will. 

II. " That the legitimate purposes to which — in succession — such evidence is applica- 
ble, are two : namely, first, to determine whether the words of the will, with reference 
to the facts, admit of being construed in their primary sense ; and, secondly, if the facts 
of the case exclude the primary meaning of the words, to determine whether the inten- 
tion of the testator is certain in any other sense, of which the words, with reference to 
the facts, are capable. — And, 

III. " That intention cannot be averred in support of a will, except in the special 
case6, which are stated under the Seventh Proposition." 

He insists upon the rule, " That the judgment of a Court, in expounding a will, 
should be simply declaratory of what is in the instrument ; " and adds, in accordance 
with that rule, — that 

I. " Every claimant under a will has a right to require that a Court of construc- 
tion, in the execution of its office, shall — by means of extrinsic evidence — place itself 
in the situation of the testator, the meaning of whose language it is called upon to 
declare. And that, 

II. " The only cases in which evidence to prove intention is admissible, are those in 
which the description in the will is unambiguous in its application to each of several 
subjects." Ibid. p. 183-184. 



202 



CHAP. X. 

CONSTRUCTION — WHAT WORDS CREATE A DEVISE, AND DESCRIBE THE 
DEVISEES, AND THE THINGS DEVISED. 



Sect. 2. What words create a Devise. 
7. Words of Advice or Desire 
do not create a Devise. 
14. But sometimes raise a tTrust. 
18. Devises by implication. 

What words necessary to 

describe the Devisees. 
The word Heir. 
The word Issue. 
The words Sons, Children, 
Relations, Sfc, 
60. The words House or Family. 
What words necessary to de- 
scribe the Things devised. 
Lands, Tenements, and Here- 
ditaments. 
Messuage and House. 



27. 

37. 

49. 
52. 



61. 



62. 



66. 



Sect. 69. 
72. 

74. 
76. 
81. 

•90. 



101. 
117. 
132. 
142. 



The word Estate. 

All my Rents. 

All I am worth. 

The word Legacy. 

Residue or Remainder of Es- 
tate. 

Effect of additional words. 

Words applied against their 
technical meaning. 

General words confined to 
Freeholds. 

What words necessary to 
pass Reversions. 

And Mortgages or Lands 
held in Trust. 

And Equities of Redemption. 



Section 1. Having stated the general rules by which devises 
are construed, it will now be necessary to inquire, I. What 
words are necessary to create a devise. II. What words are 
necessary to describe the devisees. III. What words are neces- 
sary to describe the property intended to be devised. And IV. 
What words are necessary to denote the quantity and nature of 
the estate intended to be devised. 1 

2. With respect to the words necessary to create a devise, the 
proper and technical words are, "give and devise ; " but any other 
words which sufficiently show the intention of the testator to dis- 
pose of all, or any part of his lands or real estate, will be sufficient 
for that purpose. 



1 A devise of lands is, in all cases, considered as a specific devise, whether the 
description of the lands be specific or general in its terms, either to a particular 
devisee, or to the residuary legatee. Wyman v. Brigden, 4 Mass. 151. 



Title XXXVIII. Devise. Ch. X. s. 3—7. 203 

* 3. A person having conveyed his estates to feoffees, to * 158 
his own use, before the Statute of Uses, made his will 
after that statute, and also after the Statute of Wills, by which he 
willed that his feoffees should make an estate to W. N. and the 
heirs of his body. This was adjudged to be a good devise of an 
estate tail to W. N., the intention being clear, (a) 

4. A, seised of lands in fee, and having issue two sons, B and 
C, devised several estates to B, his eldest son ; and directed that 
B should renounce all his right in Blackacre, of which the devi- 
sor was then seised, to C. This was adjudged to amount to a 
devise to C in fee. (6) 

5. A person, after giving by his will an annuity of £200 a year 
to his wife, and ,£6,000 to each of his younger children, his just 
debts being first paid ; appointed three persons " as trustees of 
inheritance for the execution hereof." The question was, whether 
the trustees took any estate in the testator's real property, so as 
to render the same chargeable with the annuity and legacies. 
The Judges of the Court of Common Pleas certified, that the 
trustees took no interest in the real estates. Lord Eldon being 
dissatisfied with this certificate, directed a case to the Court of 
King's Bench, who certified, that the trustees did take an estate. 
Lord Eldon confirmed the opinion of the Court of King's Bench, 
and observed, it was a material fact, that the testator must have 
known, when he made his will, that his personal estate was in- 
sufficient to answer its purposes, (c) 

This decree was affirmed by the House of Lords. 

6. A mere recital in a will does not operate as a devise ; and 
therefore in a case where a person, being tenant for life, remain- 
der to his wife for life, remainder to his own right heirs, made 
his will, in which he said, " My lands by Woolwich, my wife is 
to enjoy for her life; after her death, of right it goeth to my 
daughter Elizabeth, forever, provided she hath heirs." It was 
determined that nothing was devised to Elizabeth ; for the will 
did not give her any estate, but only recited that it was to go to 
her. (d) 

7. Words of advice, recommendation, or desire, do not create a 
devise ; nor will they even operate so as to raise a trust in equity, 

(a) Bro. Ab. Devise, pi. 48. (6) Hodgkinson v. Star, cited 1 Ld. Raym. 187. 

(c) Trent v. Trent, 1 Dow, 102. 

(d) Wright v. Wyvell, 2 Vent. 56. Bight v. Hammond, 1 Com. K. 232. 



204 Title XXXVIII. Devise. Ch. X. s. 7—9. 

unless the property is certain, and the persons to whom it is given 
clearly described ; and even in that case, such words are not in 

general deemed imperative or legatory, where they are 
159 * * inconsistent with the antecedent right or interest devised 

to that person to whom they are addressed ; for in such 
cases, the subject-matter of the recommendation having been once 
absolutely devised away, it cannot be presumed that the testator 
intended to use the subsequent words of recommendation in a 
legatory sense, which* would be to construe his will as inconsis- 
tent with itself, in one and the same sentence. 1 

8. A person gave all his estate to his wife ; and then said, " I 
desire and request my said wife to give all her estate, which she 
shall have at the time of her death, to her and my nearest rela- 
tions, equally among them." (a) 

Lord Harcourt said, the words of the will being so general, 
both with respect to the money, and the persons to take it, did 
not amount to a devise ; but was only a recommendation to the 
wife, to make such a disposition. But if he had desired that she 
should have given to a particular person, it would have been a 
good devise, and a trust. 2 

9. Lady Bland devised her manor of "Withington, subject to 
her debts and charges, to her son Sir John Bland, his heirs; ex- 
ecutors, administrators, and assigns, forever ; and did thereby 

(a) Palmer v. Schribb, 8 Vin. Ab. 289. 



' See infra, § 17, note. Though the words "it is my wish," in a will, gener-ally 
operate as words of bequest or gift, yet they will be construed as merely an inclina- 
tion of the mind, and not as a positive direction or act of the will, where a different 
construction would produce inconsistency and repugnance. Branson v. Hunter, 2 Hill, 
Ch. E,. 490. The words, " in trust, in the first place," are generally deemed words of 
order and method, and not of priority of obligation, where their import is not other- 
wise determined. Nash v. Dillon, 1 Moll. 236. [Words in a will, expressive of desire, 
recommendation, and confidence, are not words of technical, but of common, parlance, 
and are not, prima facie, sufficient to convert a devise or bequest into a trust. Pennock's 
Estate, 20 Penn. (8 Harris,) 268 : Tolson v. Tolson, 8 Gill, 376 ; Cowman v. Harrison, 
17 Eng. Law & Eq. 290.] 

2 Where, after u devise of all his property to his wife, the testator " mrnes% con- 
jured " her to make provision for their only child and granddaughter, it was held no 
trust. Winch v. Brutton, 8 Jur. 1086. But where, after » bequest of property to her 
two sons, the testatrix added, — " But I most earnestly wish that my said sons may 
give or settle their respective shares on their respective daughters, in preference to their 
sons," — qtuere, whether these words were imperative, or merely precatory. Young v. 
Martin, *2 Y. & C. 582; and see Knight v. Broughton, 11 CI. & Ein. 513. 



Title XXXVIII. Devise. Ch. X. s. 9. 205 

earnestly request her said son, that in case of failure of issue of 
his body, he would sometime in his lifetime, either by will, or 
any other writing, convey and settle the said real estate, so de- 
vised by her to him, or so much thereof as he should stand seised 
of at the time of his death, so and in such manner as that after 
failure of issue of his body, the same might come to be enjoyed 
by her daughter, and the heirs of her body ; with several remain- 
ders ovQr. (a) 

Sir J. Bland disposed of the manor of Withington by his will. 

Lord Hardwicke said, that in law, Sir John Bland clearly had 
a power of disposing ; the devise being to him and his heirs, not 
subject to any trust ; but whether he had such an estate in 
equity was the doubt; which depended upon the request in 
Lady Bland's will, whether imperative or not ; for if it was the 
former, Sir J. Bland must then be considered as a trustee for the. 
uses in the will. In order to make such construction, the party 
must declare his will, and not leave it purely to the option of 
the devisee, whether he will or will not give the estate. There 
had been many cases in the Court of Chancery where clauses 
directory had been taken for a disposition ; as in those of 
Mason * v. Limbery, and Massey v. Sherman, where there * 160 
were the words trust and confidence. But as it was so in 
some instances, it might be otherwise in others ; and the request 
to be complied with" barely at the devisee's discretion. In the 
present case, he thought Lady Bland did not mean her request to 
her son as imperative, but discretionary ; for he was not desired 
to settle any part of the lands, but might sell the whole if he- 
pleased ; and this was a bare request, not obligatory, but subject 
to his judgment, as to such parts as he should die seised of. He 
might have sold them for a valuable consideration, might have- 
advanced a son or daughter in marriage with them, or put them 
to any other use he should think fit. It was said that the debts 
and charges, to which the lands were liable, answered the doubt 
arising from the words so much. But the payment of debts and 
legacies, had no sort of connection with, and bore no relation to, 
the time of his death ; which was the only point of time to 
which the request related. And this brought it very near to the 
case of the Attorney-General v. Hall, before Lord King ; where 

(a) Bland v. Bland, Hil. 1745. MSS. Eep. 
VOL. III. 18 



206 Title XXXVIII. Devise. Ch. X. s. 9—12. 

• 
it was held, that the absolute property vested in the son, and that 
he might dispose of it. Here, it was not a bare power, but the 
fee itself that was given ; and his power of disposing was not 
collateral, but flowed from the nature of the estate given him. 
He was, therefore, of this opinion, upon the penning of the will, 
by which he did not mean to contradict former cases, wherein 
there was a desire to settle a particular thing ; here being no 
such desire, either as to any particular part, or the wholo, but all 
absolutely left in Sir J. Bland's power, to dispose of or not, as he 
should think fit. {a) 

10. Sir B. CunlifFe devised certain sugar-houses and stock in 
trade to his son Sir E. Cunliffe, the plaintiff's brother; never- 
theless, in case Sir B. Cunliffe should die without a son, he rec- 
ommended it to him to give and devise the said premises to the 
plaintiff. It was held by the Lords Commissioners, Aston and 
Smythe, that the word " recommend " was not sufficient to raise 
a trust in favor of the plaintiff, (b) 

11. A testatrix gave her fortune to A; and if he should die 
without issue, she recommended it to him to do justice to B and 
her children, if he should think them worthy of it. But if any 

unforeseen accident should make the whole, or any part, 
161 * acceptable * or serviceable to him, he might dispose of it, 
if he should think fit. It was held to be no trust, (c) f 

12. R. Harland, being seised in fee of the manor of Sutton, 
devised to his eldest son Philip, for life, with remainder to his 
first and other son, in tail male. Philip entered upon this estate ; 
and being possessed of leasehold estates in Sutton, some for lives, 
and others for years, by his will gave his leasehold estate for lives 
to the trustees of his father's will, to the same uses to which the 
lands devised by the father's will were limited, so far as by law he 

(a) Infra, e. 15. Fitzg. 314. 

(S) Cunliffe v. Cunliffe, cited Prec. in Cha. 201, note, Finch's ed. S. C. Amb. 686. See 
2 Ves. 532. 3 Ves. 7. (c) Le Maitre v. Bannister, cited Prac. in Cha. 201, n. Finch's ed. 



t [To the preceding cases the following may be added as falling within that class 
where the recommendation was not held to amount to a trust, on account of the prop- 
erty in respect of which the recommendation was given, not being distinctly ascer- 
tained. Attorney-Gen. v. Hall, Ktz. Rep. 314, cited in Flanders v. Clark, 1 Vez. 9 ; 
Wynne v. Hawkins, 1 Bro. C. C. 179 ; Sprange v. Barnard, 2 Bro. C. C. 586 ; Wilson 
v. Major, 11 Ves. 205; Bull v. Kingston, 1 Mer. 314; Eade v. Eade, 5 Mad. 118; 
Curtis v, Rippon, lb. 434 ; Abraham v. Alman, 1 Rus. 509 ; Bourn v. Gibbs, 1 Rus. 
& Myl. 614.] 



Title XXXVIII. Devise. Ch. X. s. 12—16. 207 

could. And then followed this clause, — "All my other lease- 
hold estates in the parish or township of Sutton, I give to my 
brother, J. Harland, forever, hoping he will continue them in the 
family." (a) 

(John entered on the estate, and died, having devised these 
leasehold estates to his widow, who afterwards married the de- 
fendant, Trigg. Whereupon Richard, the third brother., filed this 
bill, claiming the estates, as being next in remainder/under the 
will of his father.) 

Lord Thurlow held, that the will in this instance did not 
import a devise, as the words did not clearly demonstrate an 
object. 1 

13. [ In addition to the case above stated, the reader is referred 
to Sale v. Moore, and which falls within the class where the 
recommendation failed to constitute a trust, on account of the 
objects of the testator's bounty not being distinctly ascer- 
tained.] (b) 

14. Notwithstanding the authority of the preceding determin- 
ations, there are some cases in which words of desire and request 
have been held to be imperative and legatory, and consequently 
to create a trust; but that was only where the property was 
certain, and the objects of the testator's bounty clearly pointed 
out. 

15. A person devised a copyhold to his wife in fee ; adding 
these words, " not doubting but that my wife will dispose of the 
same to and amongst my children, as she shall please." This 
was held by Lord Hardwicke to be a trust for the children, as 
she should appoint, (c) 

16. E. Wortley devised his collieries and coal mines 

to trustees, * their heirs, executors, administrators, and *162 

(a) Harland v. Trigg, 1 Bro. C. C. 142. 

(6) 1 Sim. 534. See also Heneage v. Lord Andover, 10 Price, 230. 

(c) Massey v. Sherman, Amb. 520. 



i This was again stated by Lord Thurlow, as the sole ground of his decision of Har- 
land v. Trigg, in the subsequent case of Nowlan v. Nelligan, 1 Bro. Ch. C. 491. He 
said that the words were sufficient to raise a trust, had the object been certain. See the 
cases cited in the notes of Mr. Belt and Mr. Eden to the principal case, 1 Bro. Ch. C. 
142; Wright v. Atkyns, 17 Ves. 255, 262; 19 Ves. 299; Coop. Ch. C. 255, S. C. See 
also Coop. Ch. C. Ill, 121, 122. 



208 Title XXXVIII. Devise. Ch. X. 5. 16—17. 

assigns, upon trust, to convey and dispose of the same in such 
manner as his daughter, whether sole or covert, should direct or 
appoint, by any writing or writings under her hand and seal. 
And in a subsequent part of the will, the testator declared, that 
although his meaning was to give his said daughter the absolute 
disposal of the said collieries, to prevent the expense and trouble 
that must attend the management of affairs of such a nature un- 
der the direction of .the Court of Chancery, he requested his said 
daughter to direct the money arising therefrom to be applied in 
such manner as he had directed the same, in default of her direc- 
tion and appointment, (a) 

A question having arisen on the construction of this will, 
whether Lady Bute had an absolute power of disposing of the 
collieries, Lord Henley declared, that the testator did not intend 
to empower Lady Bute to direct the trustees to dispose of the 
premises for her absolute benefit, or without consideration ; but 
that he intended only to give her a power to have the same 
sold, and that the money arising therefrom should be applied to 
the purchase of lands, in the same manner as the clear profits 
of the premises, in case she had made no appointment. And 
decreed accordingly, which was affirmed by the House of Lords. 

17. A testator devised all his manors, &c, unto his mother and 
her heirs forever ; in the fullest confidence that, after her decease, 
she would devise the property to his family. ('&) 

It was decreed by Sir W. Grant, M. R., that the words were 
sufficient to raise a trust, the word "family" in a devise of real 
property, meaning the, same as "heir at law." f 

(a) Bute v. Stuart, 1 Bro. Pari. Ca. 476. (S) Wright v. Atkyns, 17 Ves. 255. 19 Ves. 299. 



[t In Doe v. Wrighte, 2 B. & Aid. 710, a devise, accompanied with a desire that the 
devisee would convey to some charitable uses, was held void. — Note to former edition.] 

[The following are the principal cases in which words of recommendation have been 
•considered imperative, and therefore amounting to a trust for the object of the testator's 
■bounty ; although they chiefly relate to bequests of personalty, the Editor deems it 
advisable here to refer to them, as they apply not only to bequests of chattels personal, 
but bequests of chattels real, a portion of the law of real property strictly coming within 
the professed scope of the present work. Where words of desire are used, Mason v. 
Limbury, cited Vernon v. Vernon, Amb. 4 ; Eales v. England, Pr. Ch. 200 ; Harding 
v. Glyn, 1 Atk. 468 ; S. C. 5 Ves. 501 ; 8 Ves. 571 ; 1 Turn. & K. 161. Not doubting, 
Massey v. Sherman, Amb. 520. Request, Nowlan v. Nelligan, 1 Bro. C. C. 489 ; Pier- 
son v. Garnet, 2 Bro. C. C. 226 ; Pr. Ch. 201, note. Ed. Finch. Recommend, Malim v. 



Title XXXVIII. Devise. Ch. X. s. 18. 209 

* 18. The .Courts have in some instances allowed of a * 163 
devise by implication, (f) where it has been very apparent, 
in order to support and effectuate the intention of the testator ; but 



Keighley, 2 Ves. 333; Horwood v. West, 1 Sim. & Stu. 387 ; Dashwood v. Peyton, 18 
Ves. 41 ; Broad v. Bevan, 1 Russ. 511, note. Authorise and empower. Brown v. Higgs, 
4 Ves. 708; 5 Ves. 495; 8 Ves. 561 ; 18 Ves. 192. Will and desire, with power of 
selection. Forbes v. Ball, 3 Mer. 437 ; Birch v. Wade, 3 Ves. & Bea. 198 ; Tibbits v. 
Tibbits, 19 Ves. 656; 1 Jac. 317; Cruwys v. Colman, 9 Ves. 319. Entreat, with 
power of selection. Prevost v. Clarke, 2 Mad. 458. The following cases form a class 
wherein the above words were held not to be imperative, and therefore not raising a 
trust. Bull v. Vardy, 1 Ves. 270 ; Meggison v. Moore, 2 Ves. 630 ; Paul v. Compton, 
8 Ves. 375; Robinson a. Smith, 6 Mad. 194; 1 Russ. 509; Meredith v. Heneage, 
1 Sim. 542 ; Poley v. Parry, 5 Sim. 138.] 

In addition to the cases collected by Mr. White, in the preceding note, the student is 
referred to those cited in Lewin on Trusts, ch. 5, § 2, p. 77-81 ; and in 2 Story, Bq. 
Jur. § 1068-1073. On the doctrine itself, the last-mentioned learned author makes the 
following observations : — 

" The doctrine of thus construing expressions of recommendation, confidence, 
hope, wish, and desire, into positive and peremptory commands, is not a little diffi- 
cult to be maintained, upon sound principles of interpretation of the actual inten- 
tion of a testator. It can scarcely be presumed, that every testator should not 
clearly understand the difference between such expressions, and words of positive 
direction and command; and that, in using the one, and omitting the other, he 
should not have a determinate end in view. It will be agreed on all sides, that, 
where the intention of the testator is to leave the whole subject, as » pure matter 
of discretion, to the good will and pleasure of the party, enjoying his confidence 
and favor ; and where his expressions of desire are intended, as mere moral sugges- 
tions, to excite and aid that discretion, but not absolutely to control or govern it ; 
there, the language cannot, and ought not to be held to create a trust. Now, words of 
recommendation, and other words, precatory in their nature, imply that very discretion, 
as contradistinguished from peremptory orders ; and, therefore, ought to be so con- 
strued, unless a different sense is irresistibly forced upon them by the context. Accord- 
ingly, in more modern times, a strong disposition has been indicated not to extend this 
doctrine of recommendatory trusts ; but, as far as the authorities will allow, to give to 
the words of wills their natural and ordinary sense, unless it is clear, that they are 
designed to be used in a peremptory sense. 

" Wherever, therefore, the objects of the supposed recommendatory trust are not 
certain or definite; wherever the property, to which it is to attach, is not certain or 
definite ; wherever a clear discretion and choice to act, or not to act, is given ; wherever 
the prior dispositions of the property, import absolute and uncontrollable ownership ; 
in all such cases Courts of Equity will not create a trust- from words of this character. 
In the nature of things, there is a wide distinction between a power and a trust. In 
the former, the party may, or may not, act in his discretion. In the latter, the trust 
will be executed, notwithstanding his omission to act." See 2 Story, Eq. Jur. § 1069, 
1070. Supra, § 7, note. 

[tin Patton o. Randall, 1 Jac. & Walk. 196, Sir W. Grant, M. R., observes, "Be- 
fore an implication is raised, there must be an absence of express devise ; and in oppo- 
sition to a devise, it can never be raised."] 

18* 



210 Title XXXVIII. Devise. Ch. X. s. 18—20. 

in cases of this kind, tKe implication must be a plain, and not 
merely a possible or probable one ; for the title of the heir at law 
being plain and obvious, no words in a will ought to be construed 
in such a manner as to defeat it, if they can have any other sig- 
nification. And Lord Eldon has said—" With regard to that 
expression, 'necessary implication? I will repeat what I have 
before stated, from a note of Lord Hardwicke's judgment in 
Coryton v. Heliar, that in construing a will, conjecture must not 
be' taken for implication; but necessary implication means, not 
natural necessity, but so strong a probability of intention, that an 
intention contrary to that which is imputed to the testator cannot 
be supposed." (a) 1 

19. The first case in which a devise by implication was allowed, 
arose in 13. Hen. VII. A man devised 'his goods to his wife, 
and that after her decease his son and heir should have a certain 
house. It was determined that this was a good devise of the 
house to the wife for life, by implication ; for by the express 
words of the will, the heir was not to take it till after the death 
of the wife ; therefore, if she did not take it, no one else could, (b) 

20. It was also formerly held, that a devise to a stranger, after 
the death of the devisor's wife, would give the wife an estate for 
life by implication. But this determination has been repeatedly 
.contradicted ; because in this case two implications arise, the 
one, that the testator meant his lands should go to his wife ; the 
other, that they should descend to his heir : and therefore the 
implication in favor of the wife being only a possible, and not a 

necessary one, the title of the heir must prevail. Thus 

164* where a "person devised to A and his heirs, after the 

death of the devisor and his wife, it was determined that 

(n) Moone v. Heaseman, Willys' Eep. 141. 1 Ves. & Beames, 466. Ante, a. 9. 
(6) Bro. Ab. Devise, pi. 52. Cro. Jac. 75. Dyer v. Dyer, 1 Meriv. 414. 



1 See on the subject of Estates arising by Implication, 1 Jarm. on Wills, cb. 18, 
p. [460]-[501,] Perkins's ed. Such devises are sustainable only upon the principle 
of carrying into effect the intent of the testator ; and therefore unless, upon the whole 
will, it appears that such was his intention, no devise by implication will arise. Rath- 
bone v. Dyckman, 3 Paige, 9. And see Jackson v. Martin, 18 Johns. 31. [A clause 
in a will " that in case my son Eli dies before the expiration of said lease, then the 
house and lot, called Oak Island, shall descend to my son Andrew," there being no 
express devise of Oak Island to Eli, is a devise thereof to Eli, by implication. Holton 
». White, 3 Zabr. 330 ; Wright v. Hicks, 12 Geo. 155.] 



Title XXXVIII. Devise. Ch. X. s. 20—24. 211 

the wife took nothing, but that the lands should descend to the 
heir, during her life, (a) 

21. A copyholder devised underwoods to I. S. for twenty years 
after the death of his wife, to raise portions for his younger 
children. The question was, whether the wife took an estate, 
for life by implication ? (b) 

Lord Nottingham said, where such a devise was made to the 
heir, ;there indeed an estate should arise to the wife by implica- 
tion ; but where it was devised to a stranger, as in this case, 
there, in the mean time, it should descend to the heir, (c) 

22. A person having issue a son, who was his heir apparent, 
and two daughters, devised in these words : " If it happens that 
my son B. and my two daughters die without issue, then all my 
lands shall be and remain to my nephew D. and his heirs." It ' 
was held, I. That no express estate was by this will given to his 
children. II. That they did not take any estate by implication ; 
because then it must either be a joint estate for life, with several 
inheritances in tail, or several estates tail in succession. The 
last it could not be, because it would be uncertain who should 
take first, who next, &c. ; and the first it could not be, because 
the heir at law shall not be disinherited without a plain implica- 
tion, which in this case there was not ; for it was only a desig- 
nation and appointment of the time when the land should come 
to the nephew ; and therefore the lands descended to the heir at 
law. (d) 

23. [Where a provision is made for a devisee or legatee, out of 
property real or personal, until a certain event, and nothing fur- 
ther is added, the Courts have adopted the implication, that when 
the event arises the devisee is to take. 

24. Thus, where a testator bequeathed the residue of his real 
and, personal estate to his executors, in trust for. his son G. until 
he should attain twenty-one, and then directed that the fund 
should cease, Lord Keeper Henley held, that the testator intended 
G. should take the whole beneficial interest in the residue, and 
the bequest was the same as if the testator had said, I give the 



(a) Higham v. Baker, Cro. Eliz. 15. Smartle v. Scholar, 2 Lev. 207. T. Jones, ! 
(6) Fawlkner v. Fawlkner, 1 Vern. 21, 

(c) 1 P. Will. 38, 473. 3 P. Will. 305. 3 Vern. |_572.] 

(d) Gardner v. Sheldon, Vaugh. 259. 



212 Title XXXVIII. Devise. Ch. X. s. 24—27. 

residue of my estate to trustees, in trust for G. until twenty-one, 

and then to G. and his heirs, (a) 
165* *25. Again, where the happening of a given event is 

not provided for, but the not happening of the event is, — 

26. As, where a testator bequeathed leasehold premises to 
Richard, until his son Thomas should attain the age of twenty- 
one, and no longer ; but in case Thomas should not attain hi3 
said age, then over ; and the testator directed his said premises 
might be quitted and delivered up as aforesaid by Richard 
accordingly. Thomas attained twenty-one, and entered into 
possession. Lord Ellenborough decided that he was entitled 
absolutely.] (b) 

27. With respect to the words that are necessary in a will to 
describe the devisees, any words that are sufficient to denote the 
persons meant by the testator, and to distinguish them from all 
others, operate as a good description, (c) 1 

(a) Peat v. Powell, 1 Eden, 479. 2 Eden, 229. 

(J) Goodright v. Hoskins, 9 East, 306. Tomkins «. Tomkins, mentioned in Goodtitle v. 
Whitby, 1 Bur. 234, and cited Doe v. Cundall, 9 East, 404. (c) Tit. 32, o. 20, s. 10. 



1 In ascertaining the person intended as the devisee, it is material to ascertain 
whether any other person than the claimant sets up a title, not as heir, hut as devisee. 
For if no other person appears in that character, the presumption is stronger in favor 
of the claimant. Thomas v. Thomas, 6 T. R. 676. It was partly on this ground, that 
in the case of Beaumont v. Pell, 2 P. Wms. 141, evidence was admitted to show that 
by " Catherine Earnley," in the will, as written by the attorney, the testator meant 
" Gertrude Tardley." It is also to be remembered, that the testator is presumed to 
prefer his own blood ; and that a devise is always intended for the benefit of the de- 
visee, and is to be liberally expounded, in his favor. Hence, in several classes of cases, 
persons have been let in as devisees, who were not within the precise terms of the will, 
but probably within the general meaning of the testator-. — 1. Where the person was 
within the reason and motive of the will ; as, where the devise was to " children living" 
at the time of his decease, and a posthumous child is let in. Trower v. Butts, 1 Sim. 
& Stu. 181. So, under a devise to "the four sons " of A, who had only three sons 
and one daughter, it was held that the daughter might take. Lane v. Green, 15 Jur. 
763. [So in a bequest to " my niece, the daughter, of my late sister Sarah," the testa- 
tor having had but one sister, named Sarah Ann, who had died fifteen years before, 
and who had never had any daughter, and but one child, a son, it was held that such 
son was entitled to take. In re Rickit's Trust, 21 Eng. Law & Eq. 66. See also, Ber- 
nasconi v. Atkinson, 23 Eng. Law & Eq. 207 ; Mostyn v. Mostyn, 19 lb. 501 ; McBride 
v. Elmer, 2 Halst. Ch. R. 107 ; Voorhees v. Voorhees, lb. 511 ; Baldwin v. Baldwin, 3 
lb. 211 ; New York Annual, &c. Mutual Assistance Society v. Clarkson, 4 lb. 541 ; 
Calhoun v. Eurgeson, 3 Rich. Eq. 160; Carter v. Balfour, 19 Ala. 814.]— 2. Where 
the person is within the legal meaning of the words. Thus under a bequest to "first 
and second cousins," a grand-niece has been held entitled. Mayott v. Mayott, 2 Bro. 



Title XXlVIII. Devise. Ch. X. *. 28—30. 213 

28. Thus, where there was a devise to Margaret, the daughter 
of W. K. The daughter's name was Margery. It was held she 
should take ; quia constdt de persond. (a) 

29. A person devised an estate to William Pitcairne, eldest 
son of Charles Pitcairne of Twickenham ; who had an eldest son, 
but his name was Andrew. It was decreed that Andrew should 
take, (b) 

30. A person devised all his lands in Kent and Sussex to one 
of his cousin Nicholas Amherst's daughters, that should marry 
with a Norton, within fifteen years. N. Amherst had three 

(a) Gynes v. Kemsley, 1 Freem. 293. 

(i) Pitcairne v. Brase, Finch, 403. Doe v. Huthwaite, 3 B. & Aid. 632. 2 Moore, 304. 

#_ 

Ch. Cas. 125 ; Silcox v. Bell, 1 Sim. & Stu. 301 ; Charge v. Goodyer, 3 Russ. 140. 
So, a daughter's son was held entitled to a bequest to " his son." 8 Vin. Abr. 310, pi. 
9, per Newdigate, J., 2 Sid. 149. And a case has been mentioned, where a devise 
to " his nephews," the testator supposing the term to include only his brother's chil- 
dren, of whom there were only two, was held good to all who were legally his 
nephews, being about forty persons. — 3. Where the claimant was familiarly called 
by the testator by the name in the will, though it was not his true name ; no other 
person claiming as devisee. Such was the case of Beaumont v. Fell, supra, where 
Gertrude was familiarly called Gatty, which the scrivener probably mistook for Katy, 
and wrote out Catherine. See 1 Greenl. Evid. 5 291. So, a devise to "his father," 
on proof that his father was dead at the time of making the will, and that the 
testator usually called his grandfather "father," was held good to the grandfather. 
8 Vin. Abr. 310, pi. 7 ; 4 Leon, 74, cites 19 H. 8. So, a devise by a grandmother to 
"her daughter J. S.," whereas she is her daughter's daughter, is good to the grand- 
daughter. Owen, 88, per Walmesley, J. — 4. Where, otherwise, the gift can have 
no object, or will be defeated, for want of persons to take as devisees. Here, the rule 
is, that where there is a total want of persons to take, who properly and completely 
answer the description in the will, those who answer it incompletely, may be let in. 
Thus, for example, under a " devise to children," if there beno child living, grandchildren 
may be let in. Earl of Oxford v. Churchill, 3 Ves. & B. 69 ; Reeves v. Kymer, 4 Ves. 698. 
But not if there be any children living. Royle v. Hamilton, 4 Ves. 439 ; Crook u. Brook- 
ing, 2 Vera. 106 ; 2Pow. Dev. 298, 299, by Jarman. So, as to nephews and grandnephews. 
Shelly v. Bryer, 1 Jac. 207 ; Faulkner u. Button, 1 Ambl. 514. And see Izard v. 
Izard, 2 Desau. 303; Ewing v. Handley»4 Litt. 349; Tier v. Pennell, 1 Edw. 354. 
See also 2 Jarm. on Wills, ch. 30 and 31, 2d Am. ed. with the notes of Mr. Perkins. 
Supra, ch. 8, § 23 ; Lieber's Xegal & Pol. Hermeneutics, p. 62 ; Dent v. Pepys, 6 Mad. 
350 ; Connolly v. Pardon, 1 Paige, 291 ; Lee t . Pain, 4 Hare, 254 ; Richardson v. 
Richardson, 9 Jur. 322 ; Havergal v. Harrison, 7 Beav. 49 ; Blundell v. Gladstone, 
11 Sim. 467 ; Queen's College v. Sutton, 12 Sim. 521 ; James v. Smith, 8 Jur. 594 ; 
Thompsons. Thompson, Ibid. 839 ; Newbolt v. Price, Ibid. 1112. 

[A bequest of a residue "unto all the children of B, equally, when they shall 
severally attain the age of twenty-five years," includes all the children born before one 
attains that age, although born after the death of the testator, but does not include 
those born after one attains that age. Hubbard v. Lloyd, 6 Cush. 522.] 



214 Title XXXVIII. Devise. CL X. s. 30—35. 

daughters, one of whom married with a Norton within the fifteen 
years. This was adjudged a good devise to her, notwithstanding 
the uncertainty ; and that the law would supply the words, who 
shall first marry, (a) 

31. It has been stated, that a bastard may be a devisee, but 
that he must, for that purpose, have gained a name by reputation, 
in order that the devisor may describe him. 

32. A person devised an equal share of his estate to his two 
sons, James and Charles Rivers. Lord Hardwicke said, the ques- 
tion was, whether, as it appeared that James and Charles were 
two illegitimate children, this was such a description of their 
persons, as would entitle them to take under the will ? In the 
case of a devise, any thing that amounted to a designatio per- 
sona was sufficient : and though in strictness they were not his 
sons, yet if they had acquired that name by reputation, in com- 
mon parlance, they were to be considered as such. It 

166 * had * been said the testator had made a mistake in their 
names, and therefore" tBey could not take ; but the law 
was otherwise ; for if a man was mistaken in a devise, yet if 
the person was clearly made out by averment to be the person 
meant, and there could be no other to whom it might be applied, 
the devise to him was good, (b) 

33. It was held in a late case, that under a devise by a mar- 
ried man, having no legitimate children, " to the children which 
I may have by A, and living at my decease," natural children 
who had acquired the reputation of being his children by her, 
before the date of the will, were entitled, as upon the whole will 
intended, and sufficiently described, (c) 

34. But in a subsequent case, Lord Bldon held, that under 
the description of children in a will, illegitimate children, existing 
at the date of the will, were not entitled, unless proved by the 
will itself to be intended ; and that evidence could be received, 
only for the purpose of collecting who had acquired the reputa- 
tion of children, (d) 

35. [Nor consequently can natural children, born after the date 
of the will, take under a bequest to the issue of a particular per- 

(o) Bate v. Amherst, T. Kaym. 82. 

(6) Eivers's case, 1 Atk, 410. 

(c) Wilkinson v. Adam, 1 Ves. & B. 422. Bayley v. Snelham, 1 Sim. & Stu. 78. 

{d) Swaine v. Kennerley, 1 V. & B. 469. 



Title XXXVIII. Devise. Ch. X. s. 35—39. 215 

son : as where a bequest was to all the natural children of the 
testator's son, by Mrs. Heneage, Lord Parker, C, held, that chil- 
dren born after the will did not take, (a) 

36. But a bequest may be made to a natural child of which a 
particular woman is ensient, without reference to any person as 
the father.] (b) 

37. In consequence of the rule of law, that nemo est hceres 
viventis, an immediate devise to " the heirs " of a living person, 
would be void. But a devise to " the heir " special of a living 
person has been held good, where tHe word " heir " has been 
qualified by the words " now living," or some other words or 
circumstances have appeared in the will to manifest the testa- 
tor's intention. 1 

38. A person devised to a trustee and his heirs, in trust to 
permit Robert Durdant to receive the rents during his life, and 
after his decease, to "the heirs male of the body of the said 
Robert Durdant," then living. It was adjudged, that this was 
a vested remainder in the only son of Robert Durdant ; the 
words "heirs male of the body then living," being a sufficient 
designation of such only son, as much as if it had been to his 
heir apparent, (c) 

39. A person devised the remainder of all his estate "to the 
heirs male of the body of his aunt Elizabeth Long," law- 
fully *begotten ; " and gave a legacy of £100 to Elisabeth *167 
Long. At the death of the testator, Elizabeth Long was 
living ; and the question was, whether her eldest son could take 
under this devise. It was adjudged by the £ourt of Exchequer 
that he should take. Upon a writ of error in the Exchequer 

(a) Metham v. Duke of Devon, 1 P, Will, 529. Arnold v. Preston, 18 Ves. 288. 
(6) Earle v. Wilson, 17 Ves. 528. Gordon v. Gordon, 1 Mer, 141. 6 Mad. 292, 
(c) Burchett v. Durdant, 2 Vent. 311. 



1 See accordingly, Heard v. Horton, 1 Denio, 165. See also, 2 Jarm. on Wills, 
ch. 29, p. 1-23, (Perkins's ed.) For other cases of construction of the word "heir'' 
and "heirs," see White v. Briggs, 2 Phil. 583; 17 Law J. Ch. 423; Daly v. James, 
8 Wheat. 495; Smith v. Folwell, 1 Binn. 546; Harris v. Davis, 1 Coll. 416; 9 Jur. 
269 ; Boydell v. Golightly, 9 Jur. 2. 

"Heirs.'' may be understood to mean "children." Bowes v. Porter, 4 Pick. 198 • 
Ellis v. Essex Mer. Bridge, 2 Pick. 243 ; Bryant v. Deberry, 2 Hayw. 356 ; [Eiske v. 
Keene, 35 Maine, (5 Bed.) 349 ; Campbell v. Kawdon, 19 Barb. (N. Y.) 494 ; Aspden'a 
Estate, 2 Wallace, Jr. 368 ; Lee v. Eoard, 1 Jones's Eq. (N. C.) 125.] 



216 Title XXXVIII. Devise. Ch. X. s. 39-41. 

Chamber, before Ch.. Justices Parker and Trevor, this judgment 
was reversed, (a) 

A writ of error was brought in the House of Lords, where the 
judgment in the Exchequer Chamber was reversed, and that of 
the Court of Exchequer affirmed; upon the principle, that the 
word heir had several significations. In the strictest sense, it 
signified one who succeeded to a dead ancestor ; but it also sig- 
nified, in a more general sense, an heir apparent, which supposed 
the ancestor to be living ; and in this latter sense, the word heir 
was frequently used in statutes, law books, and records. As 
therefore the law gave several senses to this word, it would be 
hard, in this case, to expound it in the most strict and rigorous 
sense, which would destroy great part of the will ; when by law 
it might have another sense, which would support the whole will, 
and the manifest design of the party, (b) 2 

40. A person devised to his son Richard Brooking, his heirs 
male, and to the heirs of his daughter, Margaret White, jointly 
and equally, to hold to the heirs male of Richard, lawfully begotten, 
and to the heirs of Margaret, jointly and equally, and their heirs 
and assigns forever. It was resolved, that this was a sufficient 
designation of the person, to make the son of Margaret take as 
her heir, living the mother, (c) 

41. Lands were devised to a trustee, to receive and pay the 
rents and profits for the maintenance of the devisor's niece, Sa- 
rah, and the issue of her body, begotten or to be begotten during 
the natural life of the said Sarah ; and from and after the decease 
of his niece Sarah, |hen upon trust for the use of the heirs of the 

(a) Dai-bison v. Beaumont, 1 P. Wins. 229. (Whitney ». Whitney, 14 Mass. 88. Dingley 
v. Dingley, 5 Mass. 535.) (6) 3 Bro. Pari. Ca. 60. 

(c) Goodright v. White, 2 Black. Eep. 1010, (cited and approved, 4 Pick. 209.) Doe v. 
Perratt, 5 B. & Ores. 48. S. C. 10 Bing. 198. (Reversed in Dom. Proc. 9 CI. & Fin. 606.) 



i Where a testator, professing to dispose of all his estate, devised to one of his daugh- 
ters the improvement of his -homestead farm, "the said premises to he equally divided 
between all her legal heirs at her decease ; " it was held, in Massachusetts, where the 
rule in Shelley's case is abolished, that the daughter took only an estate for life, and 
that her children, living at the testator's death, took a vested remainder in fee. Bowers 
v. Porter, 4 Pick. 198. And see Whitney v. Whitney, 14 Mass. 88 ; Bates v. Webb, 
8 Mass. 448. [So where A makes a devise to B for life, and on the death of B to all 
his surviving children, all who survive the testator are intended, and they, at his death, 
take a vested interest in the estate. Martin v. Kirby, 11 Gratt. (Va.) 67.] 



Title XXXVIII. Devise. Ch. X. s. 41—45. 217 

body of his niece Sarah, lawfully begotten or to be begotten, 
their heirs and assigns forever ; without any respect to be had 
or made in regard to seniority of age or priority of birth. Sarah 
had a son and two daughters. The Court said, that the words, 
"without any respect, &c," plainly showed an intent that the 
children of Sarah should take as purchasers, (a) 

42. It has been already stated, that formerly, where 
there was "a limitation of a remainder in a deed to an *168 
heir special, it was held, that he must answer both parts 

of the description ; but that this doctrine had been altered by a 
modern decision. In the case of a devise, the same doctrine 
was held for a long time, but was denied in the following 
case, (b) 

43. A person devised to his son for life, remainder to his first 
and other sons in tail male ; and for want of such issue, to the 
heirs male of his body begotten. The devisor died, leaving a 
granddaughter, the daughter of his eldest son, his heir at law ; 
and a second son, who died leaving a son. Upon a case, sent 
out of Chancery, for the opinion of the Court of King's Bench, 
the Judges certified, that an estate in tail male passed to the 
grandson, as heir male of the body of the devisor, (c) 

44. A devise to the heirs male of the devisor only extends to 
the heirs male of his body, and not to a collateral heir ; so that 
if the devisor has not an heir male of his body, the devise is 
void, (d) 

45. A person devised his lands to his granddaughter, who 
was his heir at law, for her life ; remainder to his own right 
heirs male, forever ; and died leaving his granddaughter his 
heir at law, and a deceased brother's son, being the next in the 
male line, (e) 

Lord - Macclesfield held the devise void, because it was to the 
heirs male, without saying of any body. 

This cause came on again before Lord "Hardwicke, who di- 
rected a case to be made, for the opinion of the Judges of 
the Court of King's Bench, who certified that the brother's 
son could not take by the description of right heir male of the 
testator. (/) 

(a) Doe v. Ironmonger, 3 East, 533. (6) Tit. 32, c. 20. 

(c) Willi? v. Palmer, 5 Burr. 2615. (d) Ford v. Ossulston, 11 Mod. 189. 

(e) Dawes v. Ferrers, 2 P. Wms. 1. (/ ) 8 Vin. Ab. 31?. 

•> VOL. III. 19 ' 



218 Title XXXVIII. Devise. Ch. X. s. 46—49. 

46. It was held in a modern case, that a devise to the right 
heirs of husband and wife, was a devise to such person as an- 
swered the description of heir to both, namely, a child df both, 
husband and wife being considered in law as but one person. 
And where no preceding estate was given to the father and 
mother, such child should take as a purchaser, (a) 

47. It was held, in a case in 9 Will., that a special heir, though 
he was not heir general, might take by purchase, under a will, 
if the devisor expressly exclude the heir general ; but a devise in 
remainder to the right heirs of the testator forever, his son ex- 
cepted, is void, (b) ■ 

169 * * 48. C. Ben devised to the eldest son of his son ay. his 
estates for life ; and for want of heirs in him, to the right 
heirs of himself, C. Ben, the testator, forever, his son excepted ; 
it being his will he should have no part of his estates, either real 
or personal. C. Ben, the testator, left a son and three daughters. 
On a question who was entitled to this estate, the Court of 
King's Bench determined in favor of the daughters. A writ of 
error was brought in the House of Lords, where the Judges were 
unanimously of opinion, that no person took any estate under 
this will ; whereupon the judgment of the Court of King's Bench 
was reversed, (c) 

49. The word " issue " is a sufficient designatio persona, or 
description of a devisee, in a will ; and comprises both children 
and grandchildren, (d) 1 

(a) Eoe ». Quartley, 1 Term R. 630. 1 Inst. 187 a. 
(6) Baker v. Wall, 1 Ld. Eaym. 185. 

(c) Pugh v. Goodtitle, 3 Bro. Pari. Ca. 454. Fearne, 8th edit. App. 573. 

(d) 1 Bro. & Bing. 484. (Kingsland v. Eapelye, 3 Edw. 1.) 

1 The words " issue,' 1 or " heirs of the body," in a devise, must mean either the in- 
definite lineal succession of heirs of the body, or, the particular individuals who, at a 
given time, answer the description of " issue." Ferrill v. Talbott, Riley, Ch. Cas. 
247. And upon the context, the word "issue" may have two different meanings as 
to two moieties of a devised estate. Carter v. Bentall, 2 Beav. 551. And see Wil- 
liams v. Teale, 6 Hare, 239. r So, as to the word -"survivor." Winterton v. Crawford, 
1 Russ. & My. 407. Generally, the words " lawful issue" have as extensive a sig- 
nification as " heirs of the body; " embracing lineal descendants of every,generation ; 
and when used in the devise of an unrestricted freehold, they are deemed words of 
limitation, and of the same effect. Kingsland v. Rapelye, 3 Edw. 1. See also, Crozier 
o. Crozier, 3 Dru. & War. 373; Minter v. Wraith, 13 Sim. 52; Earle v. Hopkins, 1 
Browne, App. 55. 

In determining the meaning of the words "issue," or "children," the whole context 



Title XXXVIII. Devise. Ch. X. s. 50—52. 219 

50. A devise was made to the issue of I. S., who had then a 
daughter living, and afterwards had a son born. The question 
was, who should take. Lord Cowper said, that all the children * 
should take, and even grandchildren, if there had been any : and 
although the devise was to the issue begotten, that made no 
difference ; the words " begotten," and " to be begotten" were the 
same, as well in the construction of wills, as settlements, and 
take in all the issue after begotten ; and though, upon the death 
of the testator, there was then only a daughter born, yet, upon 
the birth of another child, the estate should open, and take in an 
after-born son. (a) 

51. In a case which has been already stated, it was held,, that 
a devise to the issue male of E. Armyn and his heirs forever, was 
a good description of the person, and a word of purchase, (b) 

52. The words " sons" " children" " relations" and " descend- 
ants" (f) are sufficient to describe the devisees in a will ; pro- 
vided they can be applied with certainty to persons answering 
those descriptions. 1 

(o) Cook v. Cook, 2 Vern. 545. 

(b) Luddington v. Kime, tit. 16, u. 1, s. 60. 1 Ld. Eaym. 205. 



of the will must be taken into consideration; and where the context is doubtful, 
the Court will adopt such a construction as will best effect the intention of the 
testator, and conduce to the general benefit of the family which is the object of his 
bounty. Yet in the case of a gift to " all and every the respective issues of the testa- 
tor's daughters, cither sons or daughters," followed by the frequent use, in a subsequent 
part of the will, of the word " issue" it was held, that the meaning of this word ought 
not to be so extended as to comprise the issue of a deceased child of one of the testa- 
tor's daughters. Farrant v. Nicholls, 15 Law Journ. N. S. 259, M. R. ; Pruen v. Os- 
borne, 11 Sim. 132. 

See further, as to the word "issue," 2 Jarm. on Wills, ch. 40, p. 328-360, by Perkins ; 
Slater v. Dangerfield, 16 Law Journ. 51. [Wynch's Trust, 28 Bng. Law & Eq. 375.] 

t [For the construction of limitations to second sons in wills, see Trafford v. Ashton, 
2 Vern. 660 ; Driver v. Frank, 3 Maul. & Sel. 25 ; 8 Taunt. 468, S. C. In a deed, 
Hawkins v. Hawkins, 9 Bing. 765. As to a second son born taking under a devise of 
real estate to a first son, the second being eldest for the time being, Lomax v. Holm- 
den, infra, § 54. As to a daughter, being the eldest child, taking under a devise to 
younger children, see Hall v. Luckup, 4 Sim. 5. For the construction of the words 
sons, children, relations, descendants, &c, see 1 Koper's Legacies, ed. 1828, ch. 2.] 

1 Where lands are devised to a. person and his " children,'" the rule is, that, if there 
are no children at the time of the devise, these words are to be construed as words of 
limitation, if necessary to give effect to the intention of the testator ; and the devisee 
will take an estate tail; but if there be children living, and capable to take, at the. time 
of the devise, the words will be construed words of purchase, and the children will take 



220 Title XXXVIII. Devise. Ch. X. s. 53. 

* 170 *53. Lands were devised to the first son of A, who was 
not heir at law to A his father. This was held a good 
•description of the second son. (a) 

(a) Marwood v. Darrel, Cases Temp. Hardw. 91. 

as immediate devisees. See Wylde's case, 6 Eep. 16 ; Allen v. Hoyt, 5 Met. 324, 328 ; 
In re Saunders, 4 Paige, 293 ; Tayloe v. Gould, 10 Barb. 388; [Van Zant v. Morris, 
25 Ala. 285.] And where the devise is general, of the residue of his estate, to chil- 
dren as a class, children in existence at the death of the testator are alone entitled ; and 
among these, posthumous children are to be included. In re Gross, 6 Am. Law Journ. 
324, N. S ; Hodges v. Isaac, Ambl. 348 ; Horsely v. Chaloner, 2 Vez. 83 ; Heathe v. 
Heathe, 2 Atk. 121; Davidson v. Dallas, 14 Ves. 576. And see Congreve v. Con- 
greve, 1 Bro. Ch. E. 530, Perkins's ed. 

But where there is a limitation in remainder, to " children"- as a class, it will vest in 
the first who comes in esse, and will open and. let in each successive member of the 
class, until the determination of the particular estate. Doe v. Perryn, 3 T. E. 484 ; 
Eight v. Creber, 5 B. & C. 866 ; Ayton v. Ayton, 1 Cox, 327 ; 1 Bro. Ch. E. 542, n. ; 
Baldwin v. Karver, Cowp. 309 ; 2 Doug. 503. 

If the context of the will, or the special circumstances, do not require a different 
interpretation, the words " relations," and "family," will be understood to mean " next 
of kin.'' Grant v. Lyman, 4 Euss. 292. So, by " personal representatives," will be un- 
derstood " executors and administrators." Saberton v. Skeels, 1 Euss. & Myl. 587 > 
Smith v. Barneby, 10 Jur. 748. But if the context require it, "representatives" will be 
interpreted' to mean " descendants!' Styth v. Monro, 6 Sim. 49. 

[A testator devised certain lands after the termination of a life-estate therein, to his 
" then heirs at law or their legal representatives, to them, their heirs and assigns for- 
ever.'' Held, that the words " their legal representatives " were descriptive of the de- 
visees and were not a limitation." Stook's Appeal, 20 Penn. (8 Harris,} 349.] 

The word " children," in its ordinary sense, does not include grandchildren ; but it 
may include them, — 1, where it appears that there were no persons who would answer 
the description of children, in the primary sense of the term ; — or, 2, where there could 
not be such at the time, or in the event, contemplated by the testator ; — or,* 3, where the 
testator has clearly shown, by the use of other words, that he used this word as synony- 
mous with " issue," or " descendants.'' Mowatt v. Carow, 7 Paige, 328. And see 
Eu£f v. Eutherford, 1 Bail. Eq. E. 7 ; Eeeves v. Brymer, 4 Ves. 692 ; Peel v. Catlam, 
9 Sim. 372 ; Dickinson v. Lee, 4 Watts, 82 ; Hallowell v. Phipps, 2 Whart. 376 ; [Hughes 
v. Hughes, 12 B. Mon. 115.] 

Where one devised lands to his son, and if he should continue unmarried till his 
death, remainder to all the testator's surviving children ; it was held, that by these words, 
the remainder was to such as should survive the first devisee. Den v. Sayre, 2 Penn. 
598; [Martin v. Kirby, 11 Gratt. (Va.) 1; Schoppert v. Gillam, 6 Eich. Eq. (S. C.) 
83.] If the testator has children of his own, and also step-children, a devise to "his- 
children," does not include the step-children ; and parol evidence will not be admitted to 
show that the testator intended to include them. Pouke v. Kemp, 5 H. & J. 135. 

Where one devised lands to his wife and three children ; and if she should be enciente 
at his death, then to her and his four children ; and while he lived she had a fourth 
child, and was enciente with the fifth at his decease; it was held that all the five chil- 
dren were equally entitled. Adams v. Logan, 6 Monr. 175. And see Trower v. Butts, 
1 Sim. & Stu. 181 ; Lenden v . Blackmore, 10 Sim. 626 ; Mogg v. Mogg, 1 Mer. 655 ; 
Harris v. Lloyd, Turn. & Euss. 310. 



Title XXXVIII. Devise. Ch. X. s. 54—56. 221 

54. A person devised to his son Caleb, for life, and after his 
decease to the first, second,' third, &c. sons of his body begotten. 
Caleb had married about two months before the date of the 
will ; he had a son who died soon, and afterwards had another 
son. (a) 

Lord Hardwicke decreed, that the second son should take 
under the will, as first son, for these words were not to be always 
taken strictly in the sense of primogenitus, or first-born, but in 
the sense of an elder son, senior, or maximus natus. 

55. It has been stated, that in deeds, as the word procreatis 
extends to issue born after the execution of the deed, so the 
word procreandis will extend to issue born before. This mode 
of construction is of course extended to wills, in which the words 
" to be begotten" and " begotten" have the same sense ; and in 
the preceding case, Lord Hardwicke held that doctrine, which 
has been confirmed in a modern case, (b) 

56. A person devised her real estate to trustees, in trust for 
her daughter Martha, with a proviso, that if she died before 
twenty-one, or marriage, then in trust to convey all the residue 
of her estate, both real and personal, " unto her nearest relation 
of the name of Pyot ; " and to his or her heirs, executors, admin- 
istrators, and assigns. The daughter died under age and un- 
married, (c) 

At the time of the will, and death of the testatrix, her nearest 
relations of the name of Pyot, were the plaintiff, Charles Pyot, 
and his sisters, the defendants, Ann and Blanche, who were both 
then unmarried, but were married at the time of Martha's death. 

(a) Lomax v. Holmden, 1 Vez. 290. 

\b) Tit. 32, c. 22. Doei). Hallett, 1 Maule & Selw. 124. 

\c) Pyot v. Pyot, MS. Eep. 1 Vez. 335. 



Where lands were devised to all " the younger children " of the testator's daughter, 

with a devise over in case she should leave no issue behind her ; and the daughter had a 

. husband and children who survived the testator, and afterwards had a second husband 

and other children ; it was held, that the children of the second marriage took equally 

with those of the first. Critchett v. Taynton, 1 Kuss. & My. 541. 

See further, as to devises to "child," "children," "son," or "daughter," and where 
these are words of limitation, 2 Jarm. on Wills, ch. 39, p. 307-327, by Perkins ; Snow- 
ball v. Procter, 2 Y. & C. 478 ; Jackson v. Merrill, 6 Johns. 185. 

" Eldest son" held, under the circumstances, not to include a second son who be- 
came the eldest by the decease of his elder brother. Livesay v. Livesay, 13 Sim. 33. 

19 * 



222 Title XXXVIII. Devise. Ch. X. s. 56. 

They had besides these another sister, Caroline, who had been 
married many years before the testatrix's death, and was no 
party to the suit. The plaintiff had also had an elder brother, 
John, who died before the testatrix, but left issue a son, Richard 
Pyot, who survived both the testatrix and her daughter, and was 
heir at law on the part of the mother to the testatrix ; and to 
whom the trustees, after the daughter's death, conveyed the 
estate in question. This Richard Pyot devised the premises to 
trustees in trust for the defendant, Pyarea Pyot, his wife, and 

E. Wilmot. The plaintiff, by his bill, claimed the testa- 
171* trix's estate, as the * nearest relation of the name of Pyot. 

The defendants Ann and Blanche, the plaintiff's sisters, 
insisted that they were entitled equally with the plaintiff, as they 
were both 'unmarried, and of the name of Pyot, at the time of 
the will, and death of the testatrix. And the defendant, Pyarea 
Pyot, and E. "Wilmot, who stood in the place of Richard Pyot, 
the heir at law, insisted that either he was the person meant by 
the nearest relation, or else that the devise was void for uncer- 
tainty ; and so the premises descended to him, as heir to the 
testatrix on the part of her mother. 

Lord Hardwicke said, the first question was, whether the de- 
vise was absolutely uncertain, and he thought it was not. It 
was said, that by the words nearest relation, the testatrix meant 
some single person ; but he was of opinion that the word rela- 
tion here was to be taken as nomen collectivum, as much as 
kindred or heir. Suppose the devise had been to her nearest 
kindred, no doubt that it would have taken in several persons ; 
wills and acts of parliament, Lord Coke tells us, were to be 
taken according to common parlance, and the word "relation," 
was often used instead of " kindred," it being common to say, 
such an one has a numerous relation, whereby were meant many ; 
and it was good English. But the present case differed from all 
that had been cited, because the personal estate was involved in 
the same devise with the real, and had this been a bequest only 
of personal estate, all those who were of the name of the Pyots 
in an equal degree, and were of the nearest stock to the testatrix, 
would have taken, by virtue of the Statute of Distributions ; 
and if it was clear who should take the personal estate, it nat- 
urally inferred whom the testatrix meant should take the real, 



Title XXXVIII. Devise. Ch. X. s. 56. 223 

there being but one intent as to both ; and this of the personal 
was a proper key to explain how the real estate was intended 
to go. 

The next question was, who was to take ? At the time of 
making the will, there were three persons in equal degree of the 
name of Pyot, and a fourth who had been so, but was married : 
two of the three married before the happening of the contin- 
gency, upon which they were to take, and so lost their name ; 
whence it was insisted by the plaintiff, that these, not being of 
the name when the contingency happened, could not claim 
with him, but he alone was entitled ; and for this was cited 
Jobson's case, Cro. Eliz. 57. He was not well satisfied with 
that determination; for what was meant was a descrip- 
tion of the * person, without any regard to the continu- *172 
ation of the name ; and had the daughter been unmarried 
at the devisor's death, she would immediately have taken, nor 
could her subsequent marriage make her lose her right ; it be- 
ing immaterial, if she was to change her. name, at what time 
she did it. But that case differed from the present, being a 
remainder to the next of his kin, of his name, after an estate 
tail to A. Taking, therefore, the word "relation" to be nomen 
collectivum, there was no ground to construe this description 
to refer to the very name of Pyot, but rather to be a description 
of the stock, and as if she had said the stock or blood of the 
Pyots. For taking it otherwise, and suppose some nearer rela- 
tion of the testatrix, but of another name at her death, had after- 
wards changed by act of Parliament his former name to Pyot ; 
or if a woman had married some man of the name of Pyot, but 
no way related to the testatrix, such a one would certainly not 
be entitled to take ; and yet every argument drawn from the 
bearing the name of Pyot, at the happening of the contingency, 
would hold equally strong for him or her, as it did for the plain- 
tiff's taking alone,, in exclusion of his sisters. This showed it, 
therefore, to be too narrow a construction, and that the word 
" relation " and " name " meant the stock of the Pyots, which 
she meant to distinguish from any other stock of consanguinity 
to her. It was like a devise upon condition to marry a person of 
the devisor's name ; the devisee married a man who had changed 
his name to that of the devisor : held, this was no performance 



224 Title XXXVIII. Devise. Ch. X. s. 56—59. 

of the condition, for that " name " meant "family." The personal 
estate was coupled with the real, and one rule must govern both, ' 
and the sister that was married was, he thought, equally entitled 
to take with the plaintiff and the other two sisters. The testa- 
trix had made no provision that the persons taking should con- 
tinue to bear the name ; and therefore the plaintiff and his three 
sisters should take equally, (a) 1 

57. A testator devised his estate to three persons for life, and 
after their death, " to the descendants " of Francis Ince, then liv- 
ing in and about Seven Oaks in Kent, (b) 

Sir T. Clarke, M. R., said, that a devise to descendants at 
large had been good ; here the devisor added a description of 
such as he intended should take, which was sufficiently precise 
and certain ; it would be unjust to confine it to the heirs at law, 

because the word " descendants " meant all those who pro- 
173 * ceeded * from his body, and therefore the grandchildren of 

Francis Ince were entitled ; but a great grandchild, being 
born after the will was made, was excluded by the words, then 
living: 

58. Lord Leigh devised his estates to his sister Mary Leigh, 
in strict settlement ; remainder " unto the first and nearest of his 
kindred, being male, and of his name and blood, that should be 
living at the determination of the several estates therein-before 
devised, and to the heirs of his body lawfully begotten." (c) 

It was held by Lord Eldon, in conformity to the opinions of 
Mr. Justice Lawrence and Mr. Baron Thompson, whom he had. 
called to his assistance, that a person, claiming under this limita- 
tion, must be of the name, as well as the blood ; and that the 
qualification as to the name was not satisfied, by having the 
name, taken by the king's license, previous to the determination 
of the preceding estates, (d) 

59. A person devised all his freehold estates to his wife during 

(a) Bon v. Smith, Cro. Eliz. 532, Marsh v. Marsh, 1 Bro. C. C. 293, 
(J) Crossly v. Clare, Amb. 397. 

(c) Leigh v. Leigh, 15 Ves. 92. Pearce v. Vincent, 1 Crom. & Mee. 598. 

(d) Denn v. Bagshaw, 6 Term Eep. 512. Doe «, Plumptre, 3 Bar, & Aid, 474. 

1 A., having during the lifetime of his wife M., intermarried with G, died, leaving 
both M. and C. living. By his will, made after his marriage»witb. C, he devised' 
lands to his " dear wife C; '' and it was held a good devise to C. Doe u. Roast, 12 ' 
Jur. 99. 



Title XXXVIII. Devise. Ch. X. s. 59—60. 225 

her natural life ; and at her decease to be equally divided amongst 
the '£ relations on his side." It was held, that all those should 
take who would be entitled to personal estate under the Statute 
of Distributions, that is, first cousins ; as well in the paternal as 
in the maternal line. And the devise spoke at the time of the 
testator's death, not at the time of framing the devise ; therefore, 
one who was related in equal degree, at the time of making the 
will, having died before the testator, leaving a son, the son was 
held not entitled to a share, as a relation, (a) f 1 

60. It was held in Queen Elizabeth's time, that a devise to 
one brother, on a condition, and on failure to remain to 
the " house," * should be construed to mean to the .most *174 
worthy in blood of the devisor's family, that is to say, to 
the heir at law. Lord Hobart has assented to this decision, and 
it has been confirmed in two modern cases, one of which has 
been already stated, (b) % 2 

(a) Doe v. Over, 1 Taunt. 263. (Green v. Howard, 1 Bro. Ch. (3. 33. Holloway v. Hol- 
loway, 5 Ves. 39D. Bird v. Wood, 2 Sim. & Stu. 400. Doe v. Lawson, 3 East, 278.) 17 
Ves. 255. 

(4) [On the construction of the word/umHj/, in bequests of personal estate, see 1 Eop. Leg. 
c. 2, s. 10, p. 123, ed. 1828, and see Doe v. Wood, 1 B. & Aid. 518. J Chapman's case, 3 Dyer, 
333 b. Sob. Eep. 29. (Wright v. Atkyns, Turn. & Russ. 156.) 

'. As to " nearest of kin," see Urquhart t>. Urquhart, 13 Sim. 613 ; Grafftey v. Hum- 
page, 1 Beav. 52 ; Cotton v. Cotton, 2 Beav. 67. 

The words, "nephews and nieces," held to include their children. James v. Smith, 14 
Sim. 214. 

"Relations" held to extend to first cousins. Craik o. Lamb, 1 Coll. N. C. 489 ; 9 
Jur. 6. And to wife's mother. McNeilledge v. Galbraith, 8 S. & R. 43. 

" Cousins," restricted to first cousins and their children. Caldecott v. Harrison, 9 Sim. 
457. And see Slade v. Fooks, Ibid. 386. 

[t There is a reference in the above case, (1 Taunt 266,) and also in 19 Ves. 301, 
to a case in 1732, decided by Sir Joseph Jekyll, in which it is stated to have been 
held, that, under a limitation to the family of J. S., the real estate went to the heir 
at law, and the personal estate to the next of kin. — Search was made for this case> 
on the discussion of the late case of Wright u. Atkyns. — The case is Golding v. 
Bogers, and was decided at the Bolls on the 3d July, 1732. Samuel Fitzall devised 
all his messuages, &c. in the county of Gloucester and elsewhere, in Great Britain, 
to his wife, her heirs and assigns, and all the residue of his moneys, &c, and all 
other bis real and personal estate, he devised and bequeathed to his said wife, her 
heirs, executors, &c. But his will was, that after his said wife's decease, his own 
family should have equally amongst them one moiety of his said residuary estate. 
Held, that one moiety of the residuary personal estate belonged to his next of kin, and 
that the wife was entitled, by the express words of the will, to the real estate in fee 
simple. — Note to former edition.] 

[t Wright v. Atkyns, ante, § 17 ; Doe v. Smith, 5 Mau. & Sel. 126.] 

2 The word "family " admits a variety of applications ; and the interpretation of it, 



226 Title XXXVIII. Devise. Ch. X. 5. 61—64. 

61. With respect to the words that are necessary to describe 
the property intended to be devised; as a will is always construed 
in the most favorable manner, for the benefit of the devisees, the 
same accuracy is not required in the description of those things 
which are intended to be devised, as is necessary in a deed ; it 
being enough if the words denote, with sufficient certainty, what 
is meant to be given. 1 

62. The words "lands, tenements, and hereditaments," will 
pass every species of property. And in a modern case, it was 
determined, that money, directed to be laid out in the purchase of 
lands, would pass by the words " lands, tenements, and heredita- 
ments whatsoever and wheresoever." (a) 2 

63. The words " all my lands, are sufficient to pass a house. 
If, however, it appears not to have been the intention of a tes- 
tator to give a house by those words, they will not have that 
effect, (b) 

64. A person, being seised of a house in Dale, and of three 

(a) Kashleigh v. Master, 3 Bro. C. C. 99. (Parker v. Marchant, 5 M. & G. 498. 6 Scott, 
485, N. E.) (6) Cro. Eliz. ill. 



in a particular will, must depend on the intentions of the testator, to be collected from 
the whole context. Blackwell v. Bull, 1 Keen, 176. 

As to devises to '■'family" "descendants" "issue," "next of kin," " relations," " per- 
sonal representatives," &c, see 2 Jarra. on Wills, ch. 30, p. 25-68, by Perkins; 2 Story, 
Eq. Jur. § 1065 b, 1071, 1072, and cases there cited. White v. Briggs, 9 Jur. 678 ; 2 
Phil. 583; Beals v. Crisford, 13 Sim. 592. [The words "male line," where one died 
without issue, were held equivalent to ex parte paternd. Boys v. Bradley, 1 7 Eng. Law 
& Eq. 132 ; Gaudry v. Pinniger, 11 lb. 63 ; Peterson v. Webb, 4 Ired. Eq. 56.] 

' As to the words necessary to describe the property devised, and what passes by 
them, see ante, tit. 32, ch. 21, § 31-62. ' - 

, A devise of " half a mile of the beach, to be measured at high-water mark, for drift- 
wood and timber," the testator owning the upland, was held to pass the soil as far up 
as that line of the shore to which sea-weed and drift-wood are usually carried by the 
sea, by the highest ordinary winter floods,, but not by extraordinary inundations. 
Brown v. Lakeman, 17 Pick. '444. [A devised to his son B, all my homestead farm 
in said D., being the same farm whereon I now live, and the same that was devised' 
me by my honored father." Held, that the last clause was only a description of the 
homestead farm, and that such a devise would pass all the homestead farm though it 
appeared that part of it was not devised to the testator by his father. Drew v. Drew, 
8 Foster, (N. H.) 489. A devise of " all lots of land lying southerly of B. street, and 
westerly of P. street, except lot No. 17," the lot No. 17 being southerly of B. street, 
but easterly of P. street, is not limited to such lots as lie both southerly of B. street, and 
westerly of P. street. Hallu. Hall, 7 lb. 275 ; see also, Holton v. White, 3 Zabr. 330.] 

2 The word "tenements," in a will, has never been construed, without other circum- 
stances, to pass a fee. Wright v. Den, 10 Wheat. 234. 



Title XXXVIII. Devise. Ch. X. s. 64—68. 227 

houses and certain lands in Sale, devised his house in Dale and 
all his lands in Sale to B. It was resolved, that the houses in 
Sale did not pass, on account of the express mention of the house 
in Dale ; for, expressum facit cessare taciturn : and if the testator 
had intended to devise the houses in Sale, he would have men- 
tioned them, as well as he did the house in Dale, (a) 

65. One Bishop, being seised of divers lands called Hayes 
Lands, which extended into two vills, Cokefield and Cranfield, 
devised all his lands in Cokefield, called Hayes Lands, to his 
youngest son and his heiri ; and in another part of his will he 
devised, that if his youngest son died without issue, his wife 
should have Hayes Lands, (b) 

The question was, whether the wife should have Hayes Lands 
in Cranfield, or only in Cokefield. And it was resolved by the 
whole Court, that she should have that only which was in 
Cokefield, because there was no more devised to the youngest* 
son. But Popham said, if the devise had been to the eldest son, 
and that if he died without issue, his wife should have 
Hayes * Lands, there peradventure she should have all ; * 175 
because the eldest son had all, the one part by devise, the 
other by descent ; and she should have all which he had. (c) 

66. A devise of a " messuage " will carry with it the curtilage 
and garden annexed to such messuage, even without the word 
" appurtenances ; " for they constitute a part of the messuage. It 
was formerly held, that the word " house " did not, in a will, 
carry the garden or curtilage belonging to such house, without 
the word " appurtenances." But this doctrine is now somewhat 
altered, (d) 

67. A being tenant for years of a house, garden, stables, and 
coal-pen, occupied by him, devised in the following words : — "I 
give the house I live in, and garden, to B." It was resolved, that 
the stables and coal-pen passed, they not being specifically given 
in the subsequent part of the will ; though the testator used them 
for the purpose of trade, as well as for the convenience of his 
house, (e) 

68. In a subsequent case, it was determined by the Court of 

(a) Ewer v. Hayden, Cro. Eliz. 476. (b) Woodden v. Osbourn, Cro. Eliz. 674. 

(c) See also Doe v. Bower, 3 Bar. & Adol. 453. 

(d) Carden v. Tuck, Cro. Eliz. 89. 2 Cha. Ca. 27. 

(e) Doe v. Collins, 2 Term R. 498. Goodright v. Pears, 11 East, 58. 



228 Title XXXVIII. Devise. Ch. X. s. 68—69. 

Common Pleas, that lands, usually occupied with a house, did 
not pass under a devise of a messuage with the appurtenances; 
it not appearing that the testator meant to extend the word 
" appurtenances " beyond its technical sense, (a) ] 

69. The word " estate " will pass every kind of property of a 
real nature, unless restrained by other words, (b) 2 

(a) Buck «. Nurton, 1 Bos. & Pull. 53. Doe v. Roberts, 5 Bar. & Aid. 407. 
(J) (Tarbell v. Tarbell, 3 Yeates, 187. Blewer v. Brightman, 4 M'Cord, 60. Archer v. 
Deneale, 1 Pet. 585.) 



1 But lands may pass, under the term " appurtenances," in a will, if such appears to 
have been the intent. Otis v. Smith, 9 Pick. 293; Eliot v. Carter, 12 Pick. 436 ; Leon- 
ard v. White, 7 Mass. 6. 

2 The word " estate," in a, will, does not necessarily include real property, but its 
meaning must be taken as explained by the context. Thus, where, after a devise of 
;eal estates, the testator proceeded thus : — "I give all the rest of my household furni- 
ture, books, linen, and cTiina, except as hereinafter mentioned, goods, chattels, estate, 
and effects, of what nature or kind soever, and wheresoever the same shall be at the 
time of my death," to certain executors in trust ; it was held that the word estate did 
not pass the real estate. Sanderson v. Dobson, 1 Exch. E. 141 ; 16 Law J. 249, Ex. 
The general rule is, that in the operative part of the will, the word " estate " passes not 
only the corpus of the property, but all the testator's interest in it, unless controlled by 
the context ; but where the word occurs not in the operative clause of the devise, but in 
another part ,of the will" referring to it, this word cannot extend the meaning of the 
operative clause, whether prior or subsequent. Doe v. White, 1 Exch. B. 526 ; 17 Law 
J. 327, Ex. 

A devise of " all my land and estate," followed by a particular description of the tracts 
devised, has been held, not to comprehend another tract not enumerated ; but to go to 
the heir at law, by descent, though he was cut off in the will by the gift of a shilling. 
Myers v. Myers, 2 M'Cord, Ch. E. 264. The words " worldly estate," have been held to 
pass both real and personal estate. Muddle v. Fry, 6 Madd. 270. So, the words "all 
my goods, chattels, estate and estates whatsoever." Churchill v. Dibben, 9 Sim. 447. And 
the word "property." Den v. Payne, 5 Hayw. 104. So, by a gift to his wife, for her 
life, of " all his money, goods, chattels, estates, and effects, of what nature or hind soever, and 
wheresoever found," and at her decease " all his property, of goods, money, chattels, estate, or 
effects whatsoever," to be divided among his children ; it was held that the testator's real 
estate passed. Midland Co. Eailw. Co. v. Oswin, 1 Coll. 74 ; 8 Jur. 138. 

See further, as to the force of the words "estate," "property," &c. 2 Jarm. on Wills, 
ch. 34, p. [181]-[189], Perkins's ed. ; Doe v. Lawton, 4 Bing. N. C. 455 ; Sutton v. 
Wood, Cam. & Nor. 202; Infra, ch. 11, § 25-39 ; Eosseter v. Simmons, 6 S. &B. 452; 
Jackson v. Housel, 17 Johns. 281 ;.HarroId v. Hoskins, 2 Dev. & Bat. 479. [The word 
estate, in a will, applied to real property, may either express the quantity of interest de- 
vised, or designate the thing devised, or both ; and the sense in which it is used must be 
determined from the will. Hart v. White, 26 Vt. (3 Deane,) 260; Schriver v. Meyer, 
19 Penn. (7 Harris,) 87; Poster v. Stewart, 18 lb. 23; Mayo v. Bland, 4 Md. Ch. 
Decis. 484 ; Wheeler v. Dunlap, 13 B. Mon. 291 ; Jessup v. Jessup, 1 Busbee, Eq. 
(N. C.) 179.1 



Title XXXVIII. Devise. Ch. X. s. 70—73. 229 

70. The Earl of B. by his will, gave part of his personal estate 
to his son-in-law, and then added these words : — " And all other 
my estate, real and personal." The question was, whether fee- 
farm rents passed by this devise, (a) 

Lord Holt delivered the opinion of the Court, that the rents 
passed by the wordsj " all my real and personal estate ; " for the 
word estate was genus generalissimum, and included all things 
real and personal, (b) 

71. But where a person gave £4,000 to trustees, in trust for 
certain persons, and by a residuary clause gave all the rest of his 
estate and effects, of what nature soever, to A and B, their 
executors and administrators, in trust to add the interest to the 
principal, so as to accumulate the same ; it being his will that 
the residue should not pass, but at the time and manner as the 
principal sum of £4,000 was directed to be paid. It was held 
that these words did not extend to a freehold house, of which 
the testator was seised. And Lord Kenyon relied on the follow- 
ing words of the clause, " to add the interest to the prin- 
cipal, * so as to accumulate the same." The interest and * 176 
principal were to make one consolidated sum of the same 
nature ; but these were terms wholly inapplicable to a real 
estate, (c) 

72. The words " all my rents" are sufficient to pass real 
estates ; for it is according to the common phrase, and usual 
manner of some men, who name their lands by their rents. 1 

73. A person, having let several houses and lands for years, 
rendering several rents, made his will in these words : — " As con- 
cerning the disposition of all my lands and tenements, I bequeath 

{a) Bridgwater v. Bolton, 1 Salk. 236. < (b) Barnes v. Patch, 8 Ves. 604. 

(c) Doe v. Buckner, 6 Term E. 610. 



1 A devise of " the privilege of cutting firewood " on a particular lot, is a devise of an 
interest in the land itself. Wright v. Barrett, 13 Pick. 41. A devise of "the rents, 
profits, and income" of lands, is sufficient to pass the land itself. Anderson v. Greble, 
1 Ashm. 136. And see Den v. Drew, 2 Green, 68; Reed v. Reed, 9 Mass. 372. 

[A devise that a person " shall receive for his support one-third of the net profits of 
a farm,'' is a devise of the land itself. Earl u. Rowe, '35 Maine, (5 Red.) 414. See 
Boyle v. Parker, 3 Md. Ch. Decis. 42 ; Parker v. Wasley, 9 Gratt. t ( Va.) 477 ; Cassily 
v. Meyer, 4 Md. 1 ; Pippin v.. Ellison, 12 Ired. 61. A gift of the dividends forever, held 
a gift of the stock. Tyrrell v. Clark, 23 Eng. Law & Eq. 536.] 

vol. in. 20 



230 Title XXXVIII. Devise. Gh. X. s. 73—77. 

the rents of D. to my wife for life, remainder over in tail." The 
question was, whether, by this devise, the reversions passed with 
the rents of the lands. For it was contended that the rents, 
divided from the reversions, were not devisable within the statute, 
the devisor having no reversion therein, (a) 

The Court resolved, that the land itself passed by the devise ; 
for it appeared to be the intention of the testator to make a de- 
vise of all his lands and tenements, and that he intended to pass 
such an estate as should have continuance for a longer time 
than the leases should endure ; and the words were apt enough 
to convey it, according to the common phrase and usual manner 
of some men, who name their land by their rents, (b) 

74. The words, " all I am worth," without any other words to 
control them, will pass real as well as personal estate. 1 

75. A testator, having given all the overplus of his money to 
the son and daughter of I. S., proceeded in these words: — "I 
give and bequeath to them all I am worth, except £20, which 
I give to my executor." It was contended, that there being no 
expression in the will which pointed at the real estate, the per- 
sonalty could only pass. But it was decreed, that these words 
carried both the realand personal estate, (c) 

76. The word " legacy " may be applied to a real estate, if the 
contents of the will show that such was the testator's intention. 

77. A, by will, gave two legacies, of £150 each, to his son and 
daughter, to be paid when they attained the age of twenty-one. 
He then gave all his realty and personalty to his wife for life, 
and, after her death, he gave one freehold estate to the son, and 
another to the daughter ; but if either or both of the children 
should die before the wife, then those legacies which were left 

to them should return to the wife, (d) 
177 * * Lord Kenyon said, the question was, whether those 
words of remainder operated on the real estates before 

(a) Kerry v. Derrick, Cro. Jao. 104. 1 Atk. 506. 1 Vez. 42, 171. 
(6) 2 Ves. & B. 74. Stewart v. Garnett, 3 Sim. 398. 

(c) Huxstep v. Brboman, 1 Bro. C. C. 437. Cowp. 306. 

(d) Hardaore v. Nash, 5 T. B. 716. 



1 A devise of "all that I possess, in doors and out doors," is sufficient to pass real estate. 
Tolar v. Tolar, 3 Hawks, 74. And see Dewey v. Morgan, 18 Pick. 295; Pitman v. 
Stevens, 15 East, 505 ; Thomas v. Phelps, 4 Russ. 348. 



Title XXXVIII. Devise. Ch. X. s. 77—80. 231 

given to the son and daughter, or only referred to the pecuniary 
legacies ? The Court had considered the whole of the will, and 
was of opinion, that those words acted upon the real estates be- 
fore given to the son and daughter. Considerable stress had 
been laid on the word " legacies," and it was argued, that it was 
an appropriate term, applicable to personal estate only. But the 
same technical and correct expressions were not to be expected 
from unlettered persons, as were usually found in wills drawn by 
professional men. Even if there were no decision to warrant the 
Court in saying that the word " legacy " might be applied to a 
real estate, if the context required it, he should have had no diffi- 
culty in making such a determination for the first time. But 
that construction had already been put on the word « legacy " 
in the case of Hope v. Taylor ; and the Court fully subscribed to 
the doctrine there laid down, (a) 

78. [So real property will pass under the description of "per- 
sonal," if it is manifest that such was the testator's intention. 

79. Thus where the testator gave his stock, cattle, household 
goods, money, &c, and personal estates, whatsoever and where- 
soever to his wife for life ; but if she were to marry, she was to 
receive no profits from his estates whatsoever ; but to resign all 
his personal estates to the after-named legatees, "in manner 
following: — I give to my brother, J. T., the house and premises 
I now dwell in, with the close adjoining, &c, to hold to him, his 
heirs and assigns : " the remainder of his personal estates the 
testator gave to another brother and two sisters, share and share 
alike, to hold to them, their heirs and assigns forever. The tes- 
tator subsequently declared, that if his wife did not marry, she 
should possess all his abovementioned estates for her life ;" and 
at her death he gave " his personal estate as abovementioned, 
that is, his house and premises wherein he then dwelt, to his 
brother, J. T., his heirs and assigns." Lord Ellenborough held, 
that the freehold property passed, (b) 

80. In King v. Shrives, the testator, being seised of a free- 
hold farm in Bedfordshire, in his own occupation, gave and be- 
queathed to his brothers, James and John King, all his goods, 
chattels, estate and effects of what nature, sort, kind, quantity 

' or quality soever, and wheresoever, (not thereby otherwise 

(a) Infra, u, 12. (b) Doe v. Tofield, 11 East, 246. 



232 Title XXXVIII. Devise. Ch. X. s. 80— 81. 

* 178 disposed * of) upon trust, first, that his debts, &c, should 
be fully paid, and that whatsoever remained after such 
discharge of his personal effects, should be appropriated for 
the benefit of his family then residing with him. Secondly, he 
willed and appointed, that his family, then residing with him as 
aforesaid, should be placed on the farm, his own estate, and then 
occupied by him, to occupy and manage it for their mutual ad- 
vantage, until his youngest son should attain twenty-one years ; 
nevertheless, under the direction of his executors who should have 
power to interfere, in case any difference or misunderstanding 
should arise between them, as mentioned in the will. Thirdly, 
when his youngest son should attain twenty-one, he directed his 
estate to be sold, and the produce divided in certain shares among 
his wife and children, and he appointed James and John King 
his executors. The testator died seised of the said estate in 
Bedfordshire, and another freehold estate, which latter estate 
was subject to a mortgage debt, with- an arrear of interest. The 
testator was indebted to various simple contract creditors, and 
left no personal estate to satisfy the mortgage and other debts. 
The trustees entered into a contract with Shrives for sale of the 
freehold estate in mortgage,- for the purpose of paying the debts ; 
and on a case, sent by the Vice- Chancellor, the question was 
whether they had, under the will, power to sell the estate for pay- 
ment of the debts, and to convey to the purchaser. It was con- 
tended, that the word " estate" in the first bequest in the will, 
meant only personal estate ; a construction strengthened by the 
testator directing that what should remain of his personal estate 
after discharge of his debts, should be appropriated for the benefit 
of his family. On the other hand it was insisted, that the free- 
hold estate in question passed, under the devise of the testator's 
estate, that word being sufficient, if not controlled by indications 
of a contrary intention, which could not be found, as the testa- 
tor's first wish was that his debts should be discharged. The 
certificate of the Court of C. B. expressed their opinion, that, 
under the will, the trustees were entitled to sell and convey 
the freehold estate in question, for the payment of the testator's 
debts.] (a) 

81. The words, " all the residue or remainder of my estate, 
property, or effects" will pass real estates of every kind. 

(o) 10 Bing. 238, 



Title XXXVIII. Devise. Ch. X. s. 82—84. 233 

82. A person devised all the rest and residue of his estate, 
whatsoever and wheresoever, to his wife. It was con- 
tended, that * the word " estate " did not necessarily mean * 179 
real estate ; but Lord Mansfield answered, that the word 
"estate" carried every thing, unless tied down by particular 
expressions, (a) 

83. A person devised all the rest and residue of her estate, of 
what nature or kind soever. It was contended, that these words 
only applied to the personal property of the testator, because 
they were accompanied with limitations peculiar to personal 
property. But the Court said, they could not restrain the mean- 
ing of those words to personal property, and negative the opera- 
tion of them as to real estates, (b) 

84. G. Jackson, being seised of several real estates, descendible 
freeholds, and chattels real, gave to his mother, Mary Jackson, 
some particular estates for life, without liberty of committing 
waste ; he afterwards gave several legacies, and an annuity of 
£30 to his heir at law, and then proceeded thus : — " I also give 
and bequeath unto my dearly beloved mother, Mary Jackson, all 
the remainder and residue of all the effects, both real and per- 
sonal, which I shall die possessed of. (c) 

The question was, whether this last clause passed all the tes- 
tator's freehold estates to his mother, in fee simple. 

The Court of King's Bench in Ireland gave judgment in favor 
of the heir at law. This was reversed by the Court of King's 
Bench in England ; upon which a writ of error was brought in 
the House of Lords, (d) 

It was contended, on behalf of the appellant, to be an estab- 
lished rule, that an heir at law should not be disinherited but 
by express words, or necessary implication. The residuary clause 
in this case contained no express devise of the real estates ; the 
word " effects" being properly applicable only to personal estate. 
The subsequent words, " which' 1 shall die possessed of" sup- 
ported and strengthened this construction ; because the express 
allusion of those words to a future acquisition was inapplicable 
to real estates, as none acquired after the publication of the will 

(a) Roea. Harvey, 5 Burr. 2638. 

(6) Doe v. Chapman, 1 H. Bl. 223. See Newland v. Marjoribanks, 5 Taunt. 268. 

(c) Hogan v. Jackson, CWp. 299. (d) 3 Bro. Pari. Ca. 388. 

20* 



234 Title XXXVIII. Devise. Ch. X. s. 84. 

could pass by it ; and the word "possessed" properly related only 
to personal estate ; as to the word " real," annexed to the word 
"effects," it applied expressly to the chattels real left by the 
testator ; nor was there any necessary implication, that any greater 
interest in the real estates was intended for tire mother, than the 
estate for life, without power of waste, expressly devised to her 
in two of the denominations. Such an implication, so far 
180 * from being necessary, * was incompatible with, and would 
merge and destroy, and in fact revoke, the "mother's ex- 
press estate for life, and restriction from waste ; and would break 
through another rule, as well of law as of common sense, which 
says, that what is expressed shall not be destroyed by implica- 
tion. 

Another rule of construction was, that where words, used by a 
testator, are indifferently applied to real and personal estates, they 
should not, if there was any thing to satisfy them, receive a con- 
struction prejudicial to the heir. Now in the present case, the 
words "bequeath," "effects," and "possessed of," 'were indis- 
putably much less applicable to real than to personal estate ; they 
had never been admitted to apply to the former, except where 
insurmountable arguments of such an intent, afforded by other 
parts of the will, rendered that construction necessary. But here 
the other parts of the will were so far from requiring such a con- 
struction, that they were destroyed if it were admitted. The 
words, in their most proper sense, applied to personal estate ; and 
the chattels real which the testator left, showed his reason for 
annexing the word " real " to " effects," which otherwise properly 
meant movables only, and fully satisfied those words ; they could 
not therefore be extended to real estates. 

It was also an established rule, that general words, in one part 
of a will, should be so construed as not to defeat the plain inten- 
tion of the testator, to be collected from any other part of his 
will. Now, in the present case, the devise to the mother for life, 
without power of waste, was incompatible with an intention to 
give her the same lands in fee ; and therefore the residuary clause 
must be so construed as to avoid this inconsistency. 

On the other side it was contended, that it was manifest the 
testator did not mean to die intestate, as to any part of his real 
property; not only from the expressive words in the residuary 



Title XXXVIII. Devise. Ch. X. s. 84—85. 235 

clause, but also from the introductory words of the will, " as to 
my worldly substance ; " which had been always understood to 
consist of real and personal estate ; and to indicate an intent, in 
the testator who used them, to dispose of all his property. The 
testator's first devise to his mother was only of a part of his real 
estate ; creditors were entitled to a further part, that is, so much 
as would be sufficient, by sale, to discharge their incumbrances ; 
the legatees were entitled to a further part thereof ; yet there still 
remained some part to dispose of ; and this remainder the 
* testator had, with perfect consistency, given to his *181 
mother, bythe residuary clause. The views, with which 
he made these two devises, were sufficiently obvious ; by the 
former, in all events, and subject to no incumbrance, he made 
a provision for his mother ; by the latter, he gave her the resi- 
due which might remain, after all the incumbrances should be 
discharged. He had not, therefore, given part and the whole to 
his mother. 

In this case, the heir at law was disinherited, both by express 
words, and by necessary implication ; for, in the residuary clause, 
the testator had made use of the most expressive and compre- 
hensive words, in giving to his mother the whole remainder of 
his real property, (a) 

The Judges having been consulted, the Lord Chief Baron 
delivered their unanimous opinion, that Mary Jackson took an 
estate in fee in all the testator's property, under the residuary 
clause : and the" judgment of the Court of King's Bench in Eng- 
land was affirmed, (b) ' 

85. [The construction, in respect, of general words in the resi- 
duary clause is, that ihey will carry every estate or interest 
which is not expressly, or by necessary implication, excluded 
from their operation ; and no intention of the testator, to exclude 
a reversion, is necessarily to be implied from the circumstance, 
that one of several charges on the residuary estates could not 
attach upon such reversion.] (c) 

(a) Doe v. Dring, 2 M. & Sel. 448. 

(i) Doe v. Lainchbury, 11 East, 290. Den v. Trout, 15 East, 394. Morgan v. Surman, 4 
Taunt. 289. 

(c) Doe v. Weatherby, 11 East, 322. Goodtitle v. Mar. of Downshire, 2 Bos. & P. 600. 
Infra, William v. Thomas, 12 East, 141. 

1 [See also Forsaith v. Clark, 1 Poster, (N. H.) 409.] 



236 Title XXXVIII. Devise. Ch. X. s. 86—89. 

86. But where the words, " residue of my estate, property, or 
effects" appear, from the context of the will, to have been con- 
fined by the testator to personal property only, they will not be 
construed to extend to real estates. 

87. A man, having settled all his estate of inheritance on his 
wife for life, for her jointure, made his will, and thereby devised 
several pecuniary legacies ; and then said, — " All the rest and 
residue of my estate, chattels, real and personal, I give and de- 
vise to my wife." The question was, whether the reversion of 
the jointure lands passed to the wife. Lord Harcourt decreed it 
did not ; because the precedent and subsequent words explained 
his intent to carry only his personal estate ; for in the first part 
of the will, having given only legacies, and no land, the words, 
" all the rest and residue of his estate" were relative, and must 
be intended of estate of the same nature with that he had before 

devised, which was only personal ; for having * before 
182* given no real * estate, there could be no rest or residue 

of that, out of which he had given away none. Then the 
words " chattels, real and personal" explained the word " estate" 
and showed what sort of estate he meant ; and made the devise 
as if he had said, " all the rest of my estate, whether chattels real 
or personal," &c. ; and so confined and restrained the extended 
sense of the word " estate." (a) 

88. A testator devised as follows : " All those my freehold 
lands and hop grounds, with the messuages or tenements, barns, 
&c. in the tenure of L. ; and all other the rest, residue, and re- 
mainder of my estate, consisting in money, plate, jewels, leases, 
judgments, mortgages, &c. or in any other thing whatsoever or 
wheresoever, I give to A. B. and her assigns forever." Justice 
Fortescue, at the Rolls, held that the residue of the testator's real 
estate did not pass by this devise ; for although the word " estate," 
when unrestrained, would include lands as well as personal es- 

« tate, yet here it was expressly confined to personals, as plate, 
&e. ; and had the testator intended to give all his real estate, 
why did he mention a part of it only ? (b) 

89. In a modern case, the Court of King's Bench held, that 

(a) Markant v. Twisden, 1 Ab. Eq. 211. 

(6) Timewell v. Perkins, 2 Atk. 102. Camfield v. Gilbert, 8 East, 516. Goodtitle v. Miles, 
6 East, 494. Bebb v. Penoyre, 11 East, 160. Dunnage v. White, 1 Jao. & W. 583. 



Title XXXVIII. Devise. Ch. X. s. 89—91. 237 

the words, " residue and remainder of effects," did not extend to 
real estates ; from the apparent intention manifested by the tes- 
tator, of not extending the word " effects," to real estates, (a) ' 

90. With respect to additional words, the Courts appear to 
have always been disposed to adopt the rule, established for the 
construction of deeds ; namely, that where there is a correct and 
specific description of the property devised, a mistake in any ad- 
ditional words will have no effect. But where the first description 
is merely general, there additional words will be considered, 
either as explanatory or restrictive, according to the intent of the 
testator, (b) 2 

Thus, in the following cases, a mistake in the additional words 
was held to have no effect. 

91. A person, being seised in fee of a house called the White 
Swan, in Old-street, devised it in these words : " I devise the 
house or tenement wherein William Nichols dwelleth, called the 
White Swan, in Old-street, to H. G., my daughter's son, for- 
ever." The jury found that the said W. Nichols, at the time 
when the will was made, and when the testator died, occupied 
the alley of the said house, and three upper rooms ; and 

that * divers other persons occupied the garden, and other *183 
places in the said house, (c) 

(a) Doe v. Hurrell, 5 Barn. & Aid.- 18. (6) Tit. 32, o. 21, § 56. 

(c) Chamberlain v. Turner, Cro. Car. 129. 



1 As to the construction and effect of a devise of all the residue and remainder of 
the testator's estate, or effects, &c., and what passes thereby, see Den v. Grew, 2 
Green, 68 ; Birdsall v. Applegate, 1 Spencer, 244 ; Blagge v. Miles, 1 Story, K. 426 ; 
Bradford v. Haynes, 2 Applet. 105; Fleming v. Boiling, 3 Call. 75: Bathbone v. 
Dyckman, 13 Paige, 9 ; Van Kleek v. Dutch Eef. Church, 6 Paige, 600 ; Mitford </. 
Keynolds, 12 Jur. 197 ; Davy v. Daveron, 12 Sim. 200 ; Martin v. Glover, 1 Coll. N. 
C. 269 ; Evans v. Crosbie, 11 Jur. 510 ; 16 Law Journ. 494, Chan. ; Inderwick v. In- 
derwiek, 13 Sim. 652 ; Brailsford v. Heyward, 2 Desau. 32 ; O'Neale v. Ward, 3 H. & 
M'H. 93 ; Horde o. M'Koberts, 1 Call, 337 ; Gall v. Esdaile, 8 Bing. 323 ; Doe v. 
Saunders, Cowp. 420. 

2 [Where a testator in Pennsylvania gave to his wife a life-estate in the homestead 
and two lots, and charged upon his real and personal estate an annuity to her, but did 
not mention his lands in any other part of the will, and then, after sundry legacies 
bequeathed the " surplus, be the same more or less," to be applied to the purposes of 
the Presbyterian Church, it was held that this surplus did not relate to his lands, which 
his heirs would take. Allen's Ex'ors v. Allen, 18 How. U. S. 385 ; see also Drew v. 
Drew, 8 Foster, N. H. 489.] 



238 Title XXXVIII. Devise. Ch. X. s. 91—93. 

The question was, whether all the house passed, or only the 
entry, and the three rooms which were in the possession of W. 
Nichols. 

The Ch. J., Hyde, doubted ; but Jones, Whitlock, and Croke, 
were of opinion that all the houge passed to the devisee ; for the 
devise being, " that house or tenement," and the conclusion, 
" called the White Swan," did both of them necessarily import 
the whole house. For the sign of the White Swan could not be 
intended to refer to the three rooms : and the words after, viz. 
" wherein W. Nichols dwelleth," did not abridge or alter that 
devise ; and the house being named by the particular name of the 
White Swan, although W. Nichols never inhabited it, but only 
occupied three rooms, passed by the devise. If the house had 
not been described by the particular name of the White Swan, 
and the testator had devised the house in the occupation of W. 
Nichols, there, peradventure, it should not extend to more than 
what was in the occupation of W. Nichols, (a) 

92. A testator devised all the profits of his houses and lands, 
lying in the parish of Billing, and in a street there, called Brooke- 
street, to his wife : when in truth there was no such parish as 
Billing ; but the land supposed to be devised was in Billing-street, 
All the Court held the will to be good, (b) 

93. A person made his will in these words : " I devise to S. J. 
all those my lands in Bramstead, in the county of Surrey, in the 
possession of John Ashley ; " whereas, in fact, the testator had 
not any lands in Surrey; but he had lands at Bramstead in 
Hampshire, in the possession of John Ashley. In an ejectment 
brought for these lands in Hampshire, by the heir of the testator, 
against the devisee, it was ruled by Lord Holt, that they passed 
by the devise, (c) 1 

(a) Down v. Down, 7 Taunt. 343. Blague ». Gold, Cro. Car. 447. 

(5) Pacy v. Knollis, Brown], 131. (c) Hastead v. Searle, 1 Ld. Raym. 728. 



1 A testator, having estates in the liberties of the city of Hereford, and also estates 
in the county of Hereford, devised to trustees " all my freehold, copyhold, and lease- 
hold messuages, lands and hereditaments in the city of Hereford, or the liberties 
thereof in the county of Hereford and- my two houses on Ludgate-hill, in the city 
of London;" with power to sell. In a codicil, referring to this power of sale, he 
said, " the sale thereby authorized of Pool House, and of my other estates in the 
city and county of Hereford." It was hereupon held, that his estates in the county, 



Title XXXVIII. Devise. Ch. X. s. 94—96. 239 

94. Sir B. Broughton Delves, having entered into written 
contracts for the purchase of the manor of Clatford, and the manor 
of Abbots Ann, and also the advowson of the parish church of 
Abbots Ann, and having purchased the advowson of Mottisfont, 
which was actually conveyed to him, all which estates and ad- 
vowsons were in the county of Hants, made his will, in which 
were the following words : " I give and devise all the 
manors, * messuages, advoivsons, farms, lands, tenements, * 184 
&c, situate and being in the county of Hants, for the pur- 
chase! whereof I have already contracted and agreed." (a) 

The question was, whether the advowson of Mottisfont, which 
had been actually conveyed to the testator at the time of making 
his will, passed by this devise. 

The Court of Common Pleas was unanimously of opinion 
that the advowson did not pass by the will ; for the testator 
spoke only of those estates in Hants which were under contract, 
not those of which the sale was completed. (6) 

Upon a writ of error in the King's Bench, this judgment 
was reversed ; upon the principle, that the Court could not reject 
the word " advoivsons" in the plural number ; as it appeared the 
testator meant the word " advowsons " should have its full force 
and effect. 

On a writ of error in the House of Lords, the judgment of 
the Court of King's Bench was affirmed, with the concurrence of 
a majority of the Judges present ; but contrary to the opinion of 
Lord Chancellor Apsley and Lord Camden, (c) 

95. In the following case, additional words were held to be 
explanatory, and not restrictive of the preceding ones. 

96. Doctor Paul devised to his wife his farm at Bovington, 
in the tenure and occupation of J. Smith. He devised to her 
several other estates in the same manner ; and concluded by a 
general devise to her of all his freehold and copyhold lands 

(a) St. John v. Bp. of Wititon, Cowp. 94. S. C. 2 Bl. E. 930. (5) 2 Bl. E. 930. 

(c) 3 Bro. Pari. Ca. 375. Doe v. Greathed, 8 East, 91. Doe v. Pigott, 1 Taunt. 553. 



but not within the city nor liberties, did not pass to the trustees. Moser v. Piatt, 8 

Jur. 389. 

[t In the recent case of Meyrick v. Meyrick, 1 Cr. & Mee. 820, an estate which the 
testator had obtained in exchange, was held to pass under the description of estates 
which the testator had purchased.] 



240 Title XXXVIII. Devise. Ch. X. s. 96—99. 

above devised. The farm at Bovington was copyhold, and was 
demised to J. Smith, with an exception of the woods and under- 
woods, (a) 

The heir at law brought an ejectment for the woods ; and the 
question was, whether they passed by the will, not being in the 
tenure and occupation of J. Smith 1 

Lord Mansfield held, that the words, " in the tenure and occu- 
pation of J. Smith," were not words of restriction, but of addi- 
tional description. Had the testator meant them as restrictive, 
he would have said, — all that part of my farm, or so much of my 
farm as is in the tenure, &c. The farm was an entire thing. — 

Judgment was given for the devisee, (b) 
185* *97. [But in the case of Doe v. Parkin, the testator 
having two messuages in T., of which one only was in 
his own occupation, devised all his messuages, &c. in T., and 
then, in Ms own occupation, with the appurtenances to W. The 
Court of C B. decided, that only that one passed in the testator's 
own occupation. The Court observed that Blackstone reports, 
that in St. John v. Bishop of Winton the other three barons con- 
curred with the Court of Common Pleas, which opinion was also 
strongly supported by Lord Apsley, Chancellor, and Lord Cam- 
den, the only two law lords who were present in the House of 
.Peers, and it was afterwards proposed to rehear it ; therefore the 
authority of that case was not of much weight.] (c) 

98. The Courts have gone so far as to determine, that where 
the words used by a testator are only applicable, in their strict 
technical sense, to a species of property which the testator has not, 
they shall be applied, if possible, to some other species of property, 
which the testator has, in order to effectuate his intention : for 
in cases of this kind, it is clear the testator has been ignorant 
of the technical meaning of the words which he used ; but as 
he must have had some intention when he used them, the 
Courts, in order to give effect to that intention, will apply such 
words to the property to which the testator appears to have in- 
tended to apply them. 

99. A person being seised of a fee-farm rent issuing out of 

(a) Paul v. Paul, 2 Burr. 1089. 1 Black. E. 255. 

(i) Marshall v. Hopkins, 15 East, 309. [Ante, § 61, note;] Doe v. Jersey, 1 Barn. & Aid. 
550. (c) 5 Taunt. 321. 



Title XXXVIIL Devise. Ch. X. s. 99—102. 241 

the manor of F., and having no land or manor, devised his 
manor of F. to J. S. It was held, that these words passed the 
fee-farm rent ; for the devisor being seised of that rent, and of 
nothing else in the manor, it was plain he meant the rent, and 
could mean nothing else ; so that otherwise the will must have 
been entirely void, (a) 

100. A person devised all his freehold houses in Aldersgate 
street to the plaintiff and his heirs. The testator had no free- 
hold houses there, but had leasehold houses. It was decreed 
by Mr. Justice Tracy, that though, in a grant of all one's free- 
hold houses, leasehold houses could not pass ; and that in the 
case of a will, had there been any freehold houses to satisfy the 
will, the leasehold houses should not have passed ; yet the plain 
intention of the testator being to pass some houses, and he hav- 
ing no freehold houses there, the word "freehold " should rather 
be rejected, than the will be wholly void, and the leaseholds 
should pass, (b) 

* 101. When a testator uses general words, equally * 186 
applicable to freehold and leasehold property, they have in 
general been restrained to freeholds, if the testator has both free- 
hold and leasehold property, unless a contrary intention appear ; 
and will only be applied to leasehold property, where the testa- 
tor has no freehold property to satisfy them. 

102. It was resolved by the Court of King's Bench, in 8 Cha. % 
I. "that if a man hath lands in fee, and lands for years, and 
deviseth all his lands and tenements, the fee simple lands pass 
only, and not the lease for years. And if a man hath a lease 
for years and no fee simple, and deviseth all his lands and tene- 
ments, the lease for years passeth ; for otherwise the will should 
be merely void." (c) 1 

(a) Inchley v. Robinson, 3 Leon. 165. (J) Day v. Trig, 1 P. Wms. 286. Infra. 

(c) Rose v. Bartlett, Cro. Car. 292. 



1 The former of these propositions has been assented to with considerable reluctance, 
from the conviction that it subverted the intention of testators, who employ general 
words of this nature in a comprehensive sense, and without having in view the purely 
technical distinction respecting the quality of the estate. This rule, of course, will 
yield to an indication of the testator's intention ; and therefore, if, upon the whole will, 
it can be collected that he intended that the leaseholds should pass with the freeholds, 
under a general devise, it will be so construed. And perhaps tho use of words of lim- 
itation, adapted to a chattel interest, might be regarded as evidence of such intention 
VOL. III. 21 



242 Title XXXVIIL Devise. Ch. X. s. 103—105. 

103. Lady Boreman being seised in fee of lands in Kent, and 
possessed of a mortgage for years in Essex, and also of an ex- 
tended interest upon a statute in Bucks, devised all her manors, 
messuages, lands, tenements, hereditaments, and real estate what- 
soever, in Kent, Essex, Bucks, Bedfordshire, or elsewhere in the 
kingdom of England, of which she was any ways seised or en- 
titled to, unto her nephew. By a latter clause, the testatrix 
gave all the rest, residue, and remainder of her personal estate, 
plate, gold, &c, and all her mortgages, bonds, specialties, and 
credits, whatsoever they should consist of, to her nephew and 
niece, (a) 

The question was, whether the chattel interests of the testatrix 
passed by the first clause in the will. 

Lord King • decreed that they did not ; and this decree was 
affirmed by the House of Lords. 

104. The doctrine, established in the two preceding eases, 
has been, in some degree, contradicted by the three following 
cases, in which general words have been applied both to freehold 
and leasehold property. 

105. T. Addis being seised in fee of some lands, and possessed 
of other lands under a lease for twenty-one years, all in the pos- 
session of A. B. ; and it being very difficult, by reason of long 
unity of possession, to distinguish the freehold from the lease- 
hold premises ; devised all his messuages, lands, and tenements, 
in the parish of D., which he then stood seised or possessed of, 
or in any ways interested in, and which were in the possession 
of A. B., unto his wife Jane, for her life ; remainder to his brother, 
and the heirs of his body ; remainder over, (b) 

(a) Davis v. Gibbs, 3 P. Wins. 26. (J) Addis v. Clement, 2 P. Wms. 456. 



See 1 Jarm. on Wills, 617, 620; Hobson v. Blackburn, 1 My. & K. 521 ; Goodman v. 
Edwards, 2 My. & K. 759 ; Eitzroy v. Howard. 3 Russ. 225 ; Weigall v. Broome, 
6 Sim. 99. 

This rule, however, is now abrogated, in England, by the act of 1 Vict. c. 26, which 
enacts, that by a general devise, which would describe leaseholds if the testator had no 
freehold estate, his leaseholds shall pass though he have freeholds, if a contrary inten- 
tion do not appear. 

Whether this rule would now be held applicable to devises, in those American 
States in which a devise, without words of limitation, is deemed to pass all the dev- 
isor's interest in the estate which is within the description, — quaere; and sec infra, 
ch. 11, § 2, note. 



Title XXXVIII. Devise. Ch. X. s. 105—106. 243 

* Lord King said, the question was, whether the lease- * 187 
hold passed with the freehold ; he owned the limitations 
were improper, but then the words were very strong; — all the 
lands which the testator was seised or possessed of, or any ways 
interested in ; which words, "possessed of or interested in" prop- 
erly referred to a leasehold estate ; and distinguished this case 
from that of Rose v. Bartlett, where the words "possessed of, or 
any ways interested in" were not to be found. And as the lease 
for twenty-one years was held of the church, and always renew- 
able, the lessee, who was the testator, might look upon himself, 
from the right he had to renew, as having a perpetual' estate 
therein, a kind of inheritance : therefore the leasehold premises 
ought to passfby the will. And decreed accordingly. 

106. Sir J. Lowther having freehold and leasehold estates in 
the county of Cumberland, devised in these, words : — " I give all 
my manors, lands, tenements, mines of coal and lead, rents, artd 
hereditaments whatsoever, in Cumberland, to J. Lowther in tail. 
And whereas I am owner of several burgage tenures in Cocker- 
mouth, it is my will they shall not be entailed, as I have done 
my other estates in Cumberland ; and therefore I devise them to 
Sir W. Lowther and his heirs." (a) 

A question arose, whether the leasehold estates passed by 
the devise to J. Lowther, or to Sir W. Lowther, the residuary 
legatee. 

Lord Keeper Henley said, it was plain, from the clause ex- 
cepting the burgage tenures, that the testator thought he had 
entailed these leaseholds upon James Lowther. The word 
"estates," in the will, was a general term, and comprehended 
both freehold and leasehold, and was not restrained to either. 
But it was said, that he having both sorts of estates, by the gen- 
eral words, estates of inheritance only passed, according to the 
case of Rose v. Bartlett, a single authority, where it was held, 
that the words " lands and tenements," related to estates of inher- 
itance only. That resolution might be law in that particular 
case, though he could see no reason why those words should 
not include leaseholds too, as they had been held to do where 
other words were added, as in Addis v. Clement ; lands in which 
he was any way interested. In the present case, there were words 

(a) Lowther v. Cavendish, Amb. 356. 1 Eden, 99. 



244 Title XXXVIII. Devise. Ch. X. s. 106—107. 

inserted which were material to pass leaseholds, as mines, rents ; 
which it would be strange to suppose him to devise, with- 
188* out *the lands of which they were the profits, and from 
whence they flowed. He could never intend to give them 
in the residuary clause, after he had before specifically devised 
every estate he had. (a) 

107. A testator being seised of tithes in fee, and having a 
lease of other tithes for years, perpetually renewable, without 
fine, devised all his lands, tenements, tithes, &c, to the defend- 
ant. The plaintiff, being the personal representative of the 
testator, filed his bill for the leasehold tithes ; insisting that the 
freehold tithes only passed by the will, (b) 

Mr. Baron Eyre, sitting for the Chancellor, saM the case of 
Rose v. Bartlett had been often referred to and -acknowledged ; 
one could not but respect a case so supported, yet one could not 
help asking why, by so general an expression, all the lands 
should not pass ? No reason was given in the cases ; there was 
none arising from the favor shown to an heir at law ; for the 
ordinary or next of kin were not considered in that light. There 
was none from the general rules of construction. If the words 
were the same, and the testator had only one interest, that 
would pass ; if he had different interests, the intent seemed 
to be the same ; why should not the whole pass ? There was 
but little reason in saying that the freehold satisfied the words. 
By the case of Paul v. Paul, (c) general words were not to be 
restrained, unless the Court saw abundant reason to think that 
the testator meant to use them in a restrained sense. The words 
were large enough. The determination of Rose v. Bartlett, was 
very early : he was led to think the old idea of the dignity of 
the freehold, and small value of the interesse termini, led to it. 
The leaseholder was held to be a mere pernor of the profits. 
From the change of circumstances, the rule was now become 
unsatisfactory ; the Court was considering the intent of a testa- 
tor ; it was . a degree of strictness inconsistent with the present 
state of things, to say that a man by his lands does not mean 
all. He did not mean to deny the authority of Rose v. Bartlett ; 
but he could not build upon it and take the construction for 

(a) Whitater v. Ambler, 1 Eden, 151. 

(6) Turner v. Husler, 1 Bro. C. C. 78. (c) Ante, § 96. 



Title XXXVIII. Devise. Ch. X. s. 107—109. 245 

tithes here, that was applied there for lands. He was not pre- 
pared to say, that the word " tithes" would not pass the lease- 
hold as well as the freehold. The form here was a lease, but 
being renewable, it was as much the testator's as his 
inheritance. The case of Addis v. Clement (a) * was * 189 
argued from the intent ; the limitations here were fit for 
an estate of inheritance. He inferred from this, that the power 
of renewal had made the testator forget that he had not the 
inheritance. As to there being no mention of a renewal, this was 
not upon a fine, so there was no need to raise a fund for that 
purpose. In common understanding, chattels real are real estates. 
The case of Addis v. Clement was very near this case : he 
admitted the words, " possessed of and interested" in, made that 
case stronger; but the leading principles were the same. He 
was glad to be supported by such a case, in the opinion he should 
give, namely, that the leasehold tithes did pass. 

108. There is however a case determined by Lord Hardwicke, 
and another by Lord Mansfield, in which the rule laid down in 
Rose v. Bartlett was adhered to ; and general words restrained to 
freehold estates, in exclusion of leaseholds. 

109. A person, having freehold and leasehold lands in the 
same parish, devised in the following words ; " I give, devise, 
and bequeath unto Martha, my wife, for life, all my estates in 
L. ; and after her death, I give, devise, and bequeath the afore- 
mentioned estates to my daughter Ann, and her heirs forever. 
Item, I give and bequeath unto my wife all my goods and chat- 
tels, and all other things not before bequeathed." (b) 

Martha, the devisee, married again, and had the plaintiff by 
her second husband ; who insisted that by the devise to the wife 
of the residue, the leasehold lands passed to her ; and claimed as 
executor of his mother, who was the executrix of the testator ; 
saying, that as there were both freehold and leasehold, nothing 
but the freehold passed to the defendant, being sufficient to 
answer the word estates in the will. 

Mr. Murray, for the plaintiff, cited the case of Rose v. Bartlett, 
to show, that if words are used applicable to both, they will, by 
way of eminence, pass only fee simple lands ; and that the lim- 
itations were proper only to the devise of a freehold estate, and 

(a) Ante, $ 105. (c) Knotsfovd v. Gardiner, 2 Atk. 450. 

21* 



246 Title XXXVIII. Devise. Ch. X. s. 109—112. 

therefore the testator did not intend to pass the leasehold like- 
wise. For the defendant, it was said, that the wife of the testa- 
tor had these very freehold lands settled upon her in marriage, 
and the testator had no other freehold, but a little cottage of very 
small value. 

Lord Hardwicke observed, that as the facts were not fully 
before him, it must go to a trial at law. He stated the 
190* rule *laid down in Eose v. Bartlett, and said, " Though 
in the present case I have no doubt at all as to the inten- 
tion of the testator, yet the rule of law would prevail." 

110. A testator, being seised of freehold estates of considerable 
annual value, and also possessed of two terms for years, devised 
all his manors, and all and every his several messuages, lands, 
tenements, and hereditaments whatsoever, and wheresoever, 
which he was seised of, interested in, or entitled to, lying and 
being within the several counties of N. E. &c, to his son for life, 
with impeachment for all wilful waste ; and from and after his 
decease, to the heirs of his body, (a) 

This case was twice argued in K. B. The Court, upon very 
full consideration, and with some reluctance, determined that the 
two leasehold farms did not pass by this devise. Lord Mansfield, 
in delivering the judgment of the Court, stated the will at length, 
.an,d said he did so in order to show that there were no words in 
the will, except the devise itself, which indicated any intention in 
the testator to convey the leasehold premises ; and that although 
the words of the devise were very comprehensive, yet a system 
of legal construction had been established in former cases, 
especially Rose v. Bartlett, and Davis v. Gibbs, which precluded 
them from considering the intention of the testator on the words 
of the devise, as they might otherwise have done, and bound 
them in the decision of the principal case. 

111. The rule laid down in Rose v. Bartlett has been, in some 
degree, departed from by the Court of K. B. in the following 
case: — 

112. H. Bosville, being seised of several freehold estates, and 
possessed of a part of a farm held under the church for twenty- 
one years, renewable, held with another part of the farm, and let 
together as one; devised all his manors, messuages, houses, 

[a) Pistol v. Riccardson, 1 H. Black. 26, n. 2 P. Wms. 459, n. 



Title XXXVIII. Devise. CL X. s. 112. 247 

farms, lands, woodlands, hereditaments, and real estate whatso- 
ever, to R. B. for life, remainder to trustees to preserve contin- 
gent remainders, remainder to his first and other sons in tail, 
remainder over ; and gave all the rest and residue of his ready 
money, rents in arrear, stock in the public funds, jewels, and 
personal estate, to E.. B. forever, (a) 

Upon a question, in a suit in Chancery, whether the 
word * farms carried the leasehold under the first devise, *191 
a case was sent to the Court of K. B. for their opinion. 

Lord Kenyon said, he would say a few words to show the 
foundation of his opinion. It was the duty of the Court, in 
construing a will, to give effect to the devisor's intention, as far 
as they could consistently with the rules of law, not conjectur- 
ing, but expounding his will from the words used. Where cer- 
tain words had obtained a precise technical meaning, they ought 
not to give them a different meaning ; that would be, as Lord 
King and other Judges had said, removing landmarks : but if 
there was no such appropriate meaning to the words used in a 
will, if the devisor's intention was clear, and the words used 
were sufficient to give effect to it, they ought to construe those 
words so as to give effect to the intent, and not to doubt on ac- 
count of other cases, which tended only to involve the question 
in obscurity. On the whole of this will, taking it together, he 
had no doubt. The devisor had two kinds of property, real and 
personal. It appeared by the case, that a part of a farm, held 
by lease under the Archbishop of Canterbury, had been for a 
long course of years in the testator's family, and was considered 
almost equivalent to a perpetuity, on account of the covenant to 
renew, and that, as far as it could be traced, it had been let by 
the testator and his family, together with the rest of the farm, 
which was an estate of inheritance, and which belonged to them, 
as one farm, to the same tenant, under one integral rent : every 
one must be aware of the inconvenience of splitting this farm, 
on account of the apportionment of rent, and the power of dis- 
tress ; and perhaps it would be difficult for either party to occupy 
it beneficially. The testator, having this various property, sat 
down to make his wall, and he devised all his manors, messuages, 
or tenements, houses, farms, lands, woodlands, hereditaments, 

(a) Lane v. Stanhope, 6 Term E. 345'. 



248 Title XXXVIII. Devise. Ch. X. s. 112. 

and real estate whatsoever and wheresoever, unto R. B., &c. 
In many cases that might be put, he should not lay much stress 
on the word "farm;" whether it should have much or little 
weight must depend upon the subject. Then, after giving some 
pecuniary legacies, the testator added a s residuary clause, by 
which he gave all the rest and residue of his ready money, rents 
in arrear, stock in any of the public funds, jewels, and personal 
estate, unto R. B., &c. Now, if this will were to be read 
192* by any* person not fettered with legal and technical no- 
tions, he would not hesitate about the intention, but 
would say that all the landed property, without considering the 
circumstances of that landed property, was disposed of by the 
first clause, and all the personal property by the last. It was 
material to observe, that the first words in the residuary clause 
applied to money, after which it was not to be supposed that the 
testator intended to recur to the land ; he having, in the former 
part of his will, used words sufficiently comprehensive to include 
every species of landed property. He admitted, that several of 
the limitations which were applied to real estate, were inapplica- 
ble to the species of property in dispute ; but he thought it would 
be too much to say, that that observation alone should preclude 
the idea that the testator intended to pass the leasehold part of 
the farm, under the words used in the first clause ; as it was well 
known how frequently many of the limitations, used in a will, 
were inapplicable to every species of property disposed of by it. 
He did not wonder that the Court determined the case of Pistol 
v. Riccardson with reluctance ; for it appeared that that case came 
before the Court at several different times. He only lamented 
that the case of Addis v. Clement was not then cited ; for Lord 
Mansfield seemed to feel himself pressed, by a torrent of author- 
ities, to decide contrary to his better judgment. And he could 
not forbear thinking, that if Addis v. Clement had been men- 
tioned, the Court would have decided the other way with less 
reluctance. The reason why they determined, in that case, that 
the leasehold farm did not pass by that will was, because they 
thought that all the words there used had received in other cases 
a certain technical construction, and therefore that they were 
bound by those decisions. But the Court had not that difficulty 
to encounter in this case, because here they find another word in 



Title XXXVIII. Devise, Ch. X. s. 112—114. 249 

the will, " farms," which in its general signification means that 
which is held by a person, who stands in the relation of tenant to 
a landlord. The extrinsic circumstances also weighed strongly 
in this case. Therefore, taking into consideration the residuary 
clause, in which the items enumerated were all personal chattels, 
and that the testator did not mean to die intestate as to any part 
of his property, though the property in dispute was a personal 
estate, yet as it was connected with land, he thought the 
construction *that the family had put upon the whole *193 
will was the true one. 

The following certificate was afterwards sent to the Court of 
Chancery : — " We have heard this case argued, and considered 
the effects of this will, and are of opinion, taking the whole will 
together, that the leasehold property in question is not included 
in the residuary bequest^ but passed by the prior devise ; although 
some of the limitations applied to the real estates are inapplica- 
ble to this species of property." 

113. In a subsequent case, Lord Ch. J. Eldon and the other 
Judges of the Court of Common Pleas held, that the rule, laid 
down in Rose v. Bartlett, was a rule of property not to be shaken ; 
and therefore that, under a general devise, leaseholds did not 
pass unless there was something to show an evident intention 
that they should pass. 

.114. Mr. Thompson, being seised of the manor of W., and 
other freehold estates in Yorkshire, and possessed of two lease- 
hold houses, devised his manor of W., and all other his manors, 
messuages, lands, tenements, and hereditaments, to trustees and 
their heirs, to the use of his first and other sons of his body in 
tail male; with several remainders over, in strict settlement ; and 
devised all his money, securities for money, goods, chattels, and 
effects, and all other his personal estate, not before disposed of, 
to his brother and sister, (a) 

Upon a case, sent by the Court of Chancery to the Court of 
C. B. the question was, whether the leasehold passed under the 
first general devise. 

Lord Eldon stated the reasons for the certificate ; and after 
observing that Lord Kenyon had said, in the preceding case, that 
it was the duty of courts of justice to give effect to the devisor's 

(a) Thompson v. Lawley, 2 Bos. & Pul. 303. 5 Ves. 476. (Watkins v. Lee, 6 Ves. 633.) 



250 Title XXXVIII. Devise. Ch. X. s. 114—115. 

intention, as far as they could consistently with the rules of law, 
not conjecturing, but expounding his will from the words used ; 
and that he was particularly impressed with the latter expression, 
" not conjecturing, but expounding his will from the words used;" 
he said, that whether the rule laid down in Rose v. Bart- 
lett were wisely adopted or not, it was unnecessary to determine ; 
but that case having once established a general rule, he had 

rather consent pointedly and avowedly to contradict 
194 * that rule in terms, than to acknowledge it in words * and 

deny it in effect, by raising distinctions which in fact made 
it impossible for any man to decide, in any particular case, what 
was the legal construction of a will, as to this point, till he had 
obtained the authority of a court of law, in a judgment upon the 
will, for the opinion which he gave. That it did not appear 
that there was any equitable right of renewal, nor even the prem- 
ises in question blended, in enjoyment or otherwise, with any 
freehold land ; there was no difficulty in distinguishing them 
from each other, they had never been demised together, at one 
rent, reserved to heirs ; they were short terms. No one of those 
particular circumstances, which were relied upon in former cases, 
existed in this. It was the simple case of terms for years, and 
a case of property, primd facie that sort of property which a dis- 
position of personal estate must be intended to pass. The 
estates included in the general devise were limited to the issue 
of the devisor in tail, with several remainders over. He entered 
into an examination of all the preceding cases, and concluded' 
by saying, " The rule in Rose v. Bartlett is a rule which has 
been acknowledged for ages, and upon which I shall act, until 
I am informed by the highest authority that I am no longer to 
regard it ; till I shall be so informed, I shall substantially regard 
it in judgment; for I think it better to overrule it altogether, 
which I must not do, than to deny to it its effect, upon grounds 
which do not completely satisfy my mind, as solid and safe 
grounds of distinction." 

All the other Judges said, the rule in Rose v. Bartlett ought 
not to be shaken; and the Court certified that the leasehold 
houses did not pass by the general devise. 

115. [In the recent case of Doe v. Ludlam, C. J. Tindall ob- 
serves, there was no reason, in the principal case, for departing 



Title XXXVIII. Devise. CJi. X. s. 115—121. 251 

from the general rule, which was first laid down in Rose v. Bart- 
lett ; a rule which had been followed ever since, (a) 

116. It should here be noticed, that the above rule in Rose v. 
Bartlett, and which has been the subject of so much discussion, 
is applicable only to leaseholds for years, since leaseholds for 
lives, though granted to the lessee, his executors, and adminis- 
trators, are freehold interests, though of the lowest kind : and it 
has been decided, in a recent case, that they will pass under a 
general devise of real estate.] (b) 

117. With respect to the words necessary to pass estates 

in * reversion, wherever a testator shows an intention to *195 
dispose of all his property by his will, and uses words 
sufficient for that purpose, any estates to which he is entitled in 
reversion will pass. 

118. A person, having a manor and other lands in Somerset- 
shire, devised the manor to A, for six years, and part of the 
other lands to B, in fee, and then came this clause: " And the 
rest of my lands, in Somersetshire or elsewhere, I give to my 
brother." It was adjudged, that the reversion of the manor 
passed by the word " rest." (c) 

119. A person settled part of his lands on his daughter, for life, 
and devised another part to his wife for a year after his death ; 
and then devised " all his lands, not settled or devised," to T. K. 
and his heirs. Adjudged, that the reversion of the lands settled 
on his daughter, passed by this devise, (d) 

120. A person, being seised in fee, devised Blackacre to A, for 
life, and devised to B " all his lands not before devised," to be 
sold, and the money to be divided between his younger children. 
The question was, whether the reversion of Blackacre passed by 
the devise of all his lands not before devised ; and it being re- 
ferred to the Judges of C. B., they certified, that the reversion 
was well devised, (e) 

121. A person devised a house to A and his wife, for their 
lives ; and then, the better to enable his wife to pay his legacies, 
he devised to her " all his messuages, lands, tenements, and here- 

(o) 7 Bing. 280. Also see Hobson v. Blackburn, 1 Myl. & K. 571. 
(J) Fitzroy v. Howard, 3 Russ, 225. See also 6 Ves. 642. 

(c) Wheeler v. Walroone, Aleyn, 28. 3 P. Wms. 63, n. E. 

(d) Cooke v. Gerrard, 1 Lev. 212. 1 Saund. 180. Doo v. Brazier, 5 B. & Aid. 64, 68. 

(e) Rooke «;. Rooke, 2 Vern. 461. 



252 Title XXXVIII. Devise. Ch. X. *. 121—125. 

ditaments whatsoever, within the kingdom of England, not before 
disposed of, to hold to her and her heirs." It was also found that 
the testator left sufficient to pay his legacies, without the rever- 
sion of the house, (a) 

The Court of King's Bench determined, that the reversion of 
the house did not pass ; but this judgment was unanimously re- 
versed in the Exchequer Chamber, (b) 

122. A person, who was tenant for life, remainder to his first 
and other sons in tail, with the reversion in fee in himself, having 
a son and daughter, devised " all his lands, tenements, and heredit- 
aments," to his daughter in fee, in case his son should die with- 
out issue. The son did die without issue ; and Lord Holt said, 
though the testator had only a dry reversion in fee, yet that by 
the words, " all his lands, tenements, and hereditaments," such 

reversion would pass, (c) 
196 * * 123. The words, " all my lands out of settlement"'?^ also 
the words, "not by me formerly settled," will comprehend 
reversions in fee after estates tail. 

124. Sir W. Lytton, being tenant in tail after possibility, of 
some lands, remainder in fee to trustees, in trust for himself and 
his heirs ; and being also tenant in tail of some other lands, re- 
mainder to the right heirs of his father, and having no issue, 
devised all his messuages, lands, tenements, and hereditaments 
whatsoever, out of settlement, to his nephew, Lytton Strode, and 
his heirs. The question was, whether the different reversions, to 
which he was entitled, should pass by this will, (d) 

Lord Cowper, assisted by the Master of the Rolls, Lord Ch. J. 
Trevor, and J. Tracy, decreed that the reversions passed by the 
will. And on an appeal to the House of Lords, this decree 
was affirmed, upon the principle, that by the words, " lands out 
of settlement," the reversion in fee passed ; for the same lands 
may be said to be settled - and unsettled, namely, settled as 
far as the use thereof is limited, and unsettled as to the rever- 
sion. 

125. Sir J. Chester, on the marriage of his eldest son, settled 
lands of ,£800 per annum on his eldest son for life, remainder, as 

(a) Willows v. Lj'dcot, 2 Vent. 285. 3 Hod. 229. 

(5) See also Doe v. Brazier, 5 Bar. & Aid. 64. 

(c) Dalby v. Champernoon, Skin. 631. Fletcher v. Smiton, infra, u. 11, § 54. 

(cZ) Falkland v. Lytton, 3 Bro. Pari. Ca. 24. S. C. 2 Vern. 621. 



Title XXXVIII. Devise. Ch. X. s. 125. 253 

to part, to the wife of his son for life, remainder to the first and 
other sons of that marriage in tail male, remainder to his son 
and his heirs male on any other wife, remainder to himself in fee. 
And being seised in fee of other lands in possession, in Littleton, 
Marston, and Milbroke, he devised all his lands, tenements, and 
hereditaments in these three places, "or elsewhere, not by him 
formerly settled, or thereby by him otherwise disposed of," to trus- 
tees for a term of 100 years, upon the trusts therein mentioned, 
remainder to his youngest son in fee. (a) 

The eldest son died, leaving six daughters ; and the question 
was, whether the reversion of the estate, settled on the eldest son, 
should pass by this devise. 

It was decreed by Lord King, assisted by Lord Raymond and 
another Judge, I. That the word " elsewhere " was the same as 
if the testator had said he devised all his lands in the three 
places particularly mentioned, or in any other place whatever ; 
and that there was no reason to reject so plain, proper, and intel- 
ligible a word in a will as this, which, probably was inserted to 
avoid the prolixity of naming the several other places, in 
which the * premises lay ; it being a great estate, and dim- * 197 
cult, at the time of making the will, when the testator 
might be supposed to be inops consilii, and without his writings, 
to particularize all the towns. That the word elsewhere was 
therefore the most significant, sensible, and comprehensive word 
that could be used for that purpose, equivalent to the naming of 
them. And it would be of the most dangerous consequence, un- 
der pretence of construing this will, and assisting the testator's 
intentions, to reject a word so material to be made use of, both 
for the sake of brevity and security. 

II. That the words, " not otherwise by me settled," could have 
excepted only that estate in the lands which was otherwise be- 
fore settled ; whereas it was plain that the reversion in fee was 
not settled, and therefore ought to pass by the will. The rever- 
sion in fee of the lands in question not being settled, the lands, 
as to such reversion, were not settled ; so that the same lands in 
several respects, might be said to be settled and unsettled ; viz., 
with regard to all the particular estates which were limited, the 
lands might be said to be settled; though with regard to the 

(o) Chester v. Chester, 3 P. Wins. 56. 

vol. in. 22 



254 Title XXXVIIL Devise. Ch. X. s. 125—127. 

reversion in fee, it might be properly said, that the lands were 
not settled; and the reversion in fee, which remained unset- 
tled, was part of the old estate, whereof the owner continued 
seised, (a) 

126. Mr. Tracey, being seised of estates in the counties of 
Gloucester and Worcester, and also entitled to the reversion of 
certain estates in the counties of Oxford and Wilts, devised " all 
and every his manors, messuages, lands, tenements, hereditaments, 
and premises, in the. counties of Gloucester and Worcester, and 
elsewhere in the Kingdom of England" to trustees, subject to 
certain charges thereon, and to certain limitations and estates to 
all his brothers, by his marriage settlement. The estates in the 
counties of Gloucester and Worcester were the only ones charged 
or mentioned in his marriage settlement. The question was, 
whether the reversion in fee of the estates in Oxfordshire and 
Wilts, passed by the will, (b) 

It was contended, that from the words of the will, referring to 
the limitations of estates in Gloucestershire and Worcestershire, 
and the charges thereon, it was manifest the testator had no 
other estates than those in contemplation at the time of making 

his will. But the Court of King's Bench certified, that 
198* the reversion *in fee of the estates in Oxfordshire and 

Wiltshire passed by this devise. 

127. E. Atkyns, being seised in fee in possession of the manor 
of Coates, in the county of Gloucester, and to an estate there 
called Pinbury Park; and being likewise entitled to the rever- 
sion in fee of the manor of Sewell, in the said county of Glou- 
cester, expectant on the estates tail of three persons then living, 
made his will, and thereby devised as follows : — "I give, devise, 
and bequeath all that the manor or lordship, or reputed manor or 
lordship of Coates, in the county of Gloucester, with the rights, 
royalties, and appurtenances, and also all and every the messua- 
ges, farms, lands, tenements, advowsons, and hereditaments what- 
soever of me, the said E. Atkyns, situate, lying, and being within 
or adjoining to the said manor or lordship, and also all that my 
capital messuage or tenement, and all and every my lands, tene- 
ments, and hereditaments whatsoever, whether freehold or lease- 
fa) Glorer v. Spendlove, i Bro. C. C. 337. Att.-Gen. v. Vigor, 8 Ves. 256. 

(b) Freeman v. Chandos, Cowp. 363. Doe v. Bartle, 5 B. & Aid. 492. (Doe v. Phillips, 
1 T. B. 105.) 



Title XXXVIII. Devise. Ch. X. *. 127—130. 255 

hold, situate and being at or in or near Pinbury Park, or elsewhere 
in the said county of Gloucester, with their appurtenances ; and 
all my estate, term of years, and interest therein, unto and to the 
use of my executors," &c. Upon trust, to sell the same for the 
benefit of his younger children, (a) 

Several years after the death of the testator, the reversion of 
the manor of Sewell came into possession ; and a question arose 
between the heir at law and the younger children, whether it 
passed by the will. A case was made by Lord Thurlow for the 
opinion of the Court of King's Bench, who certified that it did 
pass to the executors, by the express words of the will. 

The Chancellor ordered, that the Judge's certificate should be 
confirmed. From this order an appeal was brought to the House 
of Lords ; and a question having been put to the Judges, whether 
the reversion of the manor of Sewell passed by the will, the 
Lord Chief Baron delivered their unanimous opinion, that the 
reversion in fee of the manor of Sewell did pass by the will ; 
whefteupon the decree was affirmed, (b) 

128. It has been held, in two modern cases, that where there 
are general words in the residuary clause of a will, they carry 
every estate and interest which is not expressly, or by necessary 
implication, excluded from its operation ; and therefore carry all 
reversions, (c) 

*129. But as the intention of the testator is the rule by *199 
which all wills are construed, where it is manifest that a 
testator does not intend to devise a reversion by general words, 
such reversion will not pass, (d) 

130. A. Mervin, on the marriage of his eldest son Henry, settled 
the manor of Arlestown on himself for life, remainder to his son 
Henry for life, remainder to the first and other sons of Henry in 
tail, &c. with the reversion in fee to the father. A. Mervin had 
issue three other sons, Audley, James, and Theophilus, and four 
daughters ; and being seised of other lands in fee simple, he 
made his will, by which he devised all those lands, whereof he 
was seised in fee simple in possession, to his wife ; and also all 
other the lands, tenements, and hereditaments, whereof he was 

(a) Atkyns v. Atkyns, Cowp. 808. 

(6) 3 Bro. Pari. Ca. 408. Doe v. Meakin, 1 East, 456, S. P. 

(c) Goodright v. Downshire, 2 Bos. & Pul. 600. Doe v. Weatherby, 11 East, 322. See 
also Church v. Mundy, 15 Ves. 396. (d) Welby v. Welby, 2 V. & Bea. 196. 



256 Title XXXVIII. Devise. Cli. X. s. 130—131. 

seised in fee simple, or of which any other person was seised in 
trust for him"; with a proviso, that if his sons Henry and Audley 
(who were his first and second sons) should both of them die 
without issue male, in the lifetime of his son James, (who was 
his third son,) whereby the estate settled on his son Henry on his 
marriage should descend on his son James, that then his son 
James should not take any interest or estate in the lands therein- 
before devised to him. (a) 

The question was, whether the reversion in fee of the lands 
which were settled on Henry should pass by this devise. The 
Court of King's Bench in Ireland gave judgment that the rever- 
sion in fee did pass ; but this judgment was reversed by the 
Court of King's Bench in England ', and Lord Mansfield, in 
delivering the opinion of the Court, observed, that the words 
used by the testator were certainly sufficient to carry the rever- 
sion in fee of the lands settled on Henry, if they had not been 
restrained by other words and expressions ; and that the clause 
in the will, (besides several others,) which directed that in t;ase 
Henry and Audley should die without issue male in the lifetime 
of his son James, whereby the estate settled on Henry should 
descend to James, then James should not take any estate in the 
lands devised to him, proved to a demonstration that the testator 
did not mean to devise, this reversion ; for if he had, then it 
could never go to James. A writ of error was brought in the 
House of Lords ; and the Judges having given their opinion, that 
the reversion in fee did not pass by this devise, the judgment of 

the Court of King's Bench in England was affirmed, (b) 
200 * * 131. A person, being seised in tail of an undivided 
fourth of an estate, and entitled to the reversion in fee of 
another fourth, expectant on the determination of an estate tail, 
reciting that she was entitled to an undivided fourth of an estate, 
&c, which she thought was an estate in fee, devised it to a trus- 
tee in fee, upon several trusts ; and then came the following 
clause — " And all the rest, residue, and remainder of my estate and 
effects, I direct to be sold and disposed of, as soon as may be, 
after my decease, and thereout the expenses of my funeral to be 
paid," &c. (c) 

(a) Strong ». Teat, 2 Burr. 912. (Kennort v. M'Eoberts, 1 Wash. 96.) 

(6) 3 Bro. Pari. Ca. 219. 

(c) Roe v. Avis, 4 Terra E. 605. Goodtifle v. Miles, 6 East, 494. 



Title XXXVIII. Devise. Ch. X. s. 131—133. 257 

The Court of King's Bench held, that the reversion did not 
pass ; for although those general words were sufficient to pass a 
fee, in order to answer the purposes of the will ; yet in this case 
they said it was manifest that this estate was not in the contem- 
plation of the testatrix when she made her will, it being only a 
reversion expectant on the determination of an estate tail, which 
her aunts might have barred ; and the testatrix having by the 
former part of her will disposed of all the freehold estate to 
which she supposed herself entitled. They observed, that it was 
clear, from the purpose to which a part of the produce of what 
she directed to be sold was to be applied, namely, the paying of 
her funeral expenses, that she only meant to dispose of something 
which could be sold immediately ; and that this reversion might 
never have descended to her heirs, f 

132. It was formerly held, that lands mortgaged might be de- 
vised by the mortgagee, by the words, " all my mortgages ; " but 
afterwards the Courts laid it down, that these words would only 
comprehend mortgages for years, and not mortgages in fee, espec- 
ially if they were forfeited. 

133. A person, seised of divers lands in A, B, and C, the 
lands in C being in him by mortgage, and forfeited, made his 
will ; and after devising the lands in A and B to several per- 
sons and their heirs, he gave all the rest of his goods, chattels, 
leases, estates, mortgages, debts, ready money, plate, and 
other * goods, whereof he was possessed, to his wife, *201 
after his debts and legacies were paid ; and made her his 
executrix. The Court doubted, whether the estate in mortgage 
passed to the wife, because the word " mortgage " was coupled 
with personal things ; and because the testator used the words, — 
" whereof he was possessed." (a) 

,(o) Wilkinson v, Maryland, Cro, Car. 447. 



[t In Church v. Mundy, Lord Eldon spoke of the above case of Roe v. Avis, with 
dissatisfaction. 15 Ves. 396, 403 ; 12 Ves. 432. In the former case the testator, being 
seised of the reversion in fee of lands expectant on an estate tail in his brother, de- 
vised all his real and personal estate to his wife for life, and if she should die, leaving 
no issue, then in trust for C. in fee, and in case C. should not be then living, to be at 
the disposal of the testator's wife. The testator had no other real estate. Lord 
Eldon, overruling the decision of Sir W. Grant, M. R., decided that the reversion 

22* 



258 Title XXXVIII. Devise. Ch. X. s. 134—137. 

134. A person, who was seised of lands in fee, and of mort- 
gages in fee, devised all his lands to A. B., and gave several 
legacies, and then said, " All the residue of my estate I give to 
my executor." It was resolved, that the mortgage went to the 
executor. But if the testator had only devised his lands, with- 
out giving any legacies, and had bequeathed the rest of his 
personal estate to his executors, there perhaps the mortgaged 
lands would have passed to A. B. ; for else there would be 
nothing to answer and make sense of the clause, " all. the resi- 
due ; " for that implied that he had already devised some part of 
his personal estate ; or at least it showed that he intended part 
of it should have passed, (a) 

135. This doctrine has been entirely altered; for the nature 
of mortgages being now clearly ascertained and settled, and the 
whole transaction, till foreclosure, being considered a personal 
engagement only, in which the money borrowed is the principal, 
and the conveyance of the land only an accessary, it is estab- 
lished, that neither the general words, " lands, tenements, and 
hereditaments" nor any other words, particularly appropriated 
to the description of real estates, will carry mortgages in fee, if 
the testator (the mortgagee) has other property to satisfy the 
words, (b) 

136. A person, being seised of several freehold manors, and of 
a great personal estate, made his will, and after devising part to 
his wife for life, gave all other his lands, tenements, and heredit- 
aments, out of settlement, to his nephew. The testator after- 
wards foreclosed and got releases of the equity of redemption of 
some mortgages in fee. One of the questions in this case was, 
whether these mortgages passed by the will under the words, 
" lands, tenements, and hereditaments; " and it was agreed by the 
Lord Chancellor, assisted by the Master of the Rolls, and two 
Judges, that mortgages in fee, although forfeited when the will 
was made, did not pass by those words, (c) 

137. But if a testator has no other property answering the 
description given in his will, in point of situation, and 

202* other circumstances, "except mortgages, they will then 

(a) Winn v. Littleton, 1 Vera. 3, 

(i) Tit. 15, o. 2. (CogdeU v. Cogdell, 3 Desstu. 364. ) 

(c) Strode v. Eussell, 2 Vern, 621, 1 Atk. 605. 



Title XXXVIII. Devise. Ch. X. s. 137—140. 259 

pass by general words, though not particularly adapted to them, 
because otherwise the will would have no effect, (a) 

138. A person, possessed of a mortgage of the Swan Inn, at 
Chelsea, made his will, and thereby devised to A, and his heirs, 
" all his freehold messuages and garden grounds at Chelsea." 
It was held by Lord Hardwicke, on a question whether the 
mortgaged interest would pass by this description, that as it did 
not appear the testator had any other lands there, it certainly 
would, (b) 

139. [In Renvoize v. Cooper, the testator, after a general de- 
vise of all the residue of his real estates whatsoever and where- 
soever to his wife her heirs and assigns, and after certain pecu- 
niary legacies, added, " as to all the rest, residue, and remain- 
der of his estates, book debts, bills, bonds, mortgages, and other 
securities for money" he bequeathed the same to his wife. The 
question ■ was, whether mortgages in fee passed to the wife, or 
whether the heir at law was a necessary party to the conveyance 
of them. Sir John Leach, V. C, is reported to have given judg- 
ment in the following words ; " It may be that the mortgaged 
fee will not pass to the wife, by the residuary devise of the free- 
hold estate, because, having no mortgage for years, the subse- 
quent gift of mortgages to the wife marks this testator's intention 
that it should not pass by that devise. But if this be so, I am of 
opinion, that the mortgaged fee will pass to the wife, by the 
subsequent gift of mortgages and other securities for money, 
though coupled with personal property. In substance, money, 
secured by a mortgagee in fee, is personal property, and a gift of 
a mortgage security for money, is a gift of all the testator's 
interest in the money and security, and will therefore pass the 
fee."] (c) 

140. Various opinions have been entertained, within these few 
years, respecting the question, whether a general devise passes 
lands whereof the devisor is only mortgagee or trustee. In a case 
before Lord Rosslyn in 1800, it was contended that general 
words did not pass an estate held in trust for another, unless 
there appeared to be an intention that it should pass ; to which 

(a) 3 V. & Bea. 45. Ante, s. 98. 

(6) Clarke v. Abbot, 2 Ab. Eq. 606; Woodhouse v. Meredith, 1 Mer. 450. Martin v. Mow- 
lin, 2 Burr. 977, and 1 Dow, N. S. 13. 
(c) 1 Mad. & Geld. 371. See also Mather v. Thomas, 10 Bing, 44. 



260 Title XXXVIII. Devise. Ch. X. s. 140—141. 

his Lordship said, that was certainly the understanding; but 
perhaps the most convenient rule would have been the reverse, 
as it might be more easy to find a devisee than an heir. 
203 * * Lord Eedesdale, who was then Attorney-General, sug- 
gested, as amicus curice, that the rule, that an estate held 
in trust should pass by a general devise, would not be the most 
convenient, from the frequent instances of estates tail created by 
- general words, in consequence of which the legal estate might 
get into an infant, fettered with an entail, (a) 

141. In a subsequent case, the Master of the Rolls, Sir W. 
Grant, having determined that an estate held in trust passed by 
the general words of a will ; on an appeal to Lord Eldon, he said, 
" I am disposed in this cause to concur with the opinion of the 
Master of the Rolls, meaning rather to state my judgment that 
the rule is not, that in every case where general words are used, 
the property shall or shall not pass ; but that in each case you 
must look at every part of the will for the intention with regard 
to such property. I do not know in experience any case, in which 
the proposition is laid down so strong, one way or the other, as 
it was laid down in the Attorney- General v. Buller. I know no 
case which states as the rule, that trust estates shall not pass, 
unless the intention that they should pass appears ; and I incline 
to think- they will pass, unless I can collect from expressions in 
the will, or purposes or objects of the testator, that he did not 
mean they should pass. In this case, there is no circumstance, 
except one, that I shall observe upon, denoting any special inten- 
tion. It is the case of a dry trust, all the debts and legacies 
being long paid, as I now understand. There was therefore a 
pure legal estate in the testator, nothing remaining to be done but 
to re-convey. There is no one circumstance in this will to 'cut 
down the general effect, upon any notion of intention, unless it 
can be said, that where he meant to creat a trust, viz. as to the 
personal estate, he joins another person with his wife, giving the 
real estate to her alone ; but that is too thin an evidence of in- 
tention, to afford much inference. (&) 

The result is this : a will containing words large enough, and 
no expression in it authorizing a narrower construction than the 

(a) 1 Inst. 205, a. n. Att.-Gen. v. Buller, 5 Ves. 339. 

(6) Braybrooke v. Inskip, 8 Ves. 417. Eoe v. Keade, 8 Term E. 118. 1 Sand. Uses,. 296. 
ed. 3. 



Title XXXVIII. Devise. Ch. X. s. 141—142. 261 

general legal construction, nor any such disposition of the estate 
as is unlikely for a testator to make, of any property not in the 
strictest sense his, as complicated limitations ; nor any purpose 
at all inconsistent with as probable an intention to vest it in his 
wife as devisee, as to let it descend. I know of no case in which 
a mere devise in these general terms, without more, where 
the * question of intention cannot be embarrassed by any * 204 
reasoning upon the purpose or objects, or the person of the 
devisee, has been held not to pass the trust estate. If there was 
any such case, I would abide by it ; but I do not feel strong 
enough upon authority or reasoning to dissent from the decision 
of the Master of the Kolls.f 

142. Lands which are in mortgage, and whereof the devisor 
has only the equity of redemption, will pass by the same words 



[t Where, therefore, a general devise of real estates is for purposes applicable only 
to that which is the testator's absolute property, and inconsistent with ownership in 
another person, there trust and mortgage estates will not pass. Of this species of 
inconsistent disposition is a residuary devise of real estate charged with the pay- 
ment of debts. Duke of Leeds v. Munday, 3 Ves. 348 ; Roe v. Reade, 8 T. R. 118 ; 
Ex parte Morgan, 10 Ves. 101 ; Attorney-General v. "Vigor, 8 Ves. 273 ; Silvester v. 
Jarman, 10 Price, 78. Or where the real estate is devised in settlement; Thompson 
v. Grant, 4 Mad. 438 ; Galliers v. Moss, 9 B. & Cr. 267 ; In re Horsfall, 1 M'Clel. & 
Yo. 292 ; but a residuary devise of real estate to several as tenants in common in 
fee, was held not to be incompatible with an intention to pass the mortgage estate. 
Ex parte Whitacre. At the Rolls, July 22, 1807 ; 1 Sand. U. and T. 285. In Mather 
v. Thomas, 10 Bing. 44, the mortgaged estate was held to pass under the words secur- 
ities for money, in a residuary devise to trustees ; the trusts of the residuary dispo- 
sition being to one for life, and after his decease to be divided unto and among his 
children. And in Wall u. Bright, 1 Jac. & W. 494, an estate which the testator had 
contracted to sell, was held by Sir T. Plumer, M. R., to pass under a general devise 
of real and personal estate to trustees in trust to sell. It was, however, admitted by 
the Court that a bare trust estate would not have passed by the devise in question ; 
the purpose of conversion necessarily excluding from the general devise the intention 
of comprehending such an estate.] 

1 The power of a trustee, to devise trust estates, has been questioned of late. But 
in the recent case of Titley v. Wolstenholme, 7 Beav. 425, a devise of trust estates 
was sustained by Lord Langdale ; who relied somewhat, however, upon the word assigns, 
in the limitation of the estate. See ante, tit. 12, ch. 2, § 9, note, and the authorities 
there cited. See also, Lindsell v. Thacher, 12 Sim. 178; Sharpe v. Sharpe, 12 Jur. 
598; 17 Law J. 384, Chan. ;• Jackson a. Delancey, 13 Johns. 537, 554-559, where the 
cases are reviewed by Chancellor Kent. 

But a devise of all real estate whatsoever,- charged with £50, hat been held not to 
carry a trust estate; Rackham v. Siddall, 12 Jur. 640. 



262 Title XXXVIII. Devise. Ch. X. s. 142. 

as lands not mortgaged ; because a mortgage is only considered 
as a pledge for securing the repayment of a debt, and the lands 
remain in the mortgagor, for every other purpose, (a) 1 

(a) Philips v. Hele, 1 Rep. in CM. 101. 
1 See, as to this point, ante, tit. 15, ch. 2, § 1, note. 



263 



CHAP. XI. 



CONSTRUCTION — WHAT WORDS CREATE AN ESTATE IN FEE SIMPLE. 



Sect. 2. Words showing an Intention 
to give the whole Interest. 
18. Words of Reference. 
20. Effect of an Introductory 

Clause. 
25. The word Estate. 
39. Testamentary Estate. 
41. All my Real Property. 
45. Right, Title, and Interest. 
48. All the Rest and Residue of 
my Estate. 
Whatever else I liave not 

disposed of. 
Remainder and' Reversion. 



55. 



57. 



Sect. 60. Devise on Condition of pay- 
ing a Sum of Money. 

65. Or charged with Debts and 
Legacies. 

72. Or with a perpetual Annual 
Payment. 

76. Or for the Life of a Third 
Person. 

84. A Devise with a Limitation 
over. 

88. Devise to Trustees for Pur- 
poses requiring a Fee. 

92. What words pass the whole 
Interest in a Chattel. 



Section 1. With respect to the words that are necessary to 
denote the nature of the estate or interest intended to be given 
by the testator to the devisee, the Courts, both of law and equity, 
in conformity to the general rules of construction already stated, 
do not require in a devise those legal and technical words which, 
in a deed, are deemed absolutely necessary to the creation of 
particular estates ; but will carry the intention of the testator into 
effect, if sufficiently declared, however defective the language 
may be. 1 



1 It is abundantly settled, that in a devise, no technical words are necessary to con- 
vey a fee ; but that the intention of the testator, as collected from the whole will, is to 
govern, unless contrary to law. The following are among the more recent cases, in 
which this rule is recognized and applied. Jackson v. Babcock, 12 Johns, 389 ; Baker v. 
Briggs, 12 Pick. 27; Spalding v. Huntington, 1 Day, 8; Fox v. Phelps, 17 Wend. 
393 ; 20 Wend. 437 ; Johnson v. Johnson, 1 Munf. 549 ; Engle v. Burns, 5 Call, 463 ; 
Waring v. Middleton, 3 Desau. 249; Saunders v. Mathowson, 11 Conn. 149; Pinlay 
v. King, 3 Pet. 346, 377 ; Doe v. Turner, 2 D. & K. 398; Morrison v. Semple, 6 Binn. 
97, per Tilghman, C. J.; [Abbott v. The Essex Co. 18 How. TJ. S. 202; Deering v. 
Adams, 37 Maine, (2 Heath,) 264 ; Pratt v. Leadbetter, 38 Maine, (3 Heath,) 9 ; Fewell 
v. Pewell, 6 Rich. Eq. (S. C.) 138.] 



264 Title XXXVIII. Devise. Ch. XL s. 2—5. 

2. Upon this principle it has been long established that the 
■word "heirs " need not be used in a will to create an estate in fee 
simple ; but that any other words, sufficiently showing the inten- 
tion of a testator to give the whole of his interest in the lands to 
the devisee, will have the same effect, (a) 1 

3. Thus, it was resolved, so early as in the reign of King Ed- 

ward III., that a devise to a man, in perpetuum i gave him 
208* an * estate in fee. It is the same where the devise is to a 

person "in fee simple." So of a devise to a man and 
" his successors," that word being deemed equivalant to " heirs," 
for hceres succedit patri. (b) 2 

4. It is said by Perkins, section 557, that if lands be devised to 
J. S. " to hold to him and his assigns," he will take an estate in fee 
simple ; but this is denied by Lord Coke, who says, if a devise 
be to a man and his assigns, without saying forever, the devi- 
see has but an estate for life, (c) 

5. Lord Coke also says, a devise to A, et sanguini suo, passes 
a fee, for the blood runs through the collateral, as well as the 

(a) 1 P. ffms. 77. (6) Bro. Ab. Devise, pi. 33. 1 Inst. 9 b. .1 Kep. 85 b. (c) 1 Inst. 9 b. 



1 In the States of Maine, New Hampshire, Massachusetts, Vermont, Pennsylvania, North 
Carolina, South Carolina, Ohio, Michigan, Tennessee, Indiana, Missouri, and Mississippi, 
it is provided, by statutes, that a devise, without any words of limitation, shall be under- 
stood to convey all the estate and interest which the testator had in the property de 
vised, unless a different intention should be clearly manifest upon the face of the will 
See Maine Rev. St. 1840, ch. 92, § 26 ; Mass. Rev. St. 1836, ch. 62, $ 4 5 N. Hamp. Rev. 
St. 1842, ch. 156, § 4; Penn. Dunl. Dig. p. 572; N. Car. Rev. St. 1837, ch. 122, § 10 
S. Car. St. at Large, Vol. VI. p. 237 ; Ohio, Rev. St. 1841, ch. 129, § 49 ; Mich. Rev. 
St. 1846, ch. 68, § 2 ; Tenn. C. & N. Dig. p. 707 ; Ind. Rev. St. 1843, ch. 30, § 5 ; Misso 
Rev. St. 1845, ch. 36, § 47 ; Missi. Rev. St. 1840, ch. 34, § 23 ; Verm. Rev. St. 1839 
ch. 45, § 3. 

A similar rule exists, in regard to conveyances in general, in the statutes of New 
York, Virginia, Kentucky, Georgia, Alabama, and Arkansas. See ante, tit. 32, ch. 22, 
§ 1, note. 

And such is now the law in England, by Stat. 1 Vict. c. 26, § 28. [A testator do- 
vised to his "daughter and her legal heirs," certain real estate, but added an "express 
condition," that she should not dispose of the same, nor join her husband in any con- 
veyance thereof, but that during her life it should remain inalienable. Held, that the 
daughter took an estate in fee, the restraint upon alienation being void. Walker v. 
Vincent, 19 Penn. (7 Harris,) 369. See also Culin's Appeal, 20 lb. 243; Cook v. 
Walker, 15 Geo. 457.] 

2 Though the word "heirs n is unnecessary, in a will, yet, to give a fee, there must, 
at common law, be something more than a mere devise of the land. Franklin v. Har- 
ter, 7 Blackf. 488. 



Title XXXVIII. Devise. Ch. XL 5. 5—9. 265 

lineal line ; but a devise to a man, et semini sno, only gives him 
an estate tail, (a) 

6. The same author says, a devise to a person, " to give and 
sell," passes an estate in fee simple ; and this doctrine has been 
confirmed by several determinations. Thus, where a person de- 
vised lands to A, " to give, sell, and do therewith at his will and 
pleasure," it was held that the devisee took an estate in fee 
simple. 1 And in another case, where a man devised lands to his 
wife, " to dispose and employ them on her and his son, at her will 
and pleasure," it was held, that she took an estate in fee. (b) 

7. Where a person, seised of a house and lands, leased them 
for ninety-nine years, and then made his will, by which he de- 
vised to B. his house and all his lands for ninety-nine years, 
and then added these words : — " The said B. to have all my in- 
heritance, if the law will allow," it was held, that B. took a 
fee. (c) 

8. Where A, seised of lands in W., devised them to his son 
B for his life, " and then to remain to C, the son of B, except B 
purchased another house, with so much land as in W. for C, 
and then B should sell the lands in W. as his own." It was 
held that C took a fee in the lands in W., as B did not make 
any purchase of any other lands ; for the word purchase im- 
ported, in common parlance, an absolute purchase in fee. (d) 

9. A person devised in these words : — "I give my house in 
Broad-street to M. T., for her own use, to give away at her death 
to whom she pleases." Lord Hardwicke held, that an estate in 
fee passed, (e) 

(a) Idem. 

(6) Idem. (16 Johns. 588.) Bro. Ab. Devise, pi. 39. Moor, 57. (Doughty v. Brown, 4 
Yeates, 179. Jackson v. Coleman, 2 Johns. 391. Den v. Humphreys, 1 Harr. 25. Moore v. 
Webb, 2 B. Monr. 282. Dice u. Sheffer, 3 W. & S. 419. Barnard v. Bailey, 2 Harr. 56.. 
Culbertson v. Duly, 7 W. & S. 195. Shermer v. Shermer, 1 Wash. 343. Wythe, E. 6.) 

(c) Widlake v. Harding, Hob. 2. S. C. Moor, 837. Godb. 207. 

(d) Green v. Armsteed, Hob. 65. (Stoever v. Stoever, 9 S. & E. 434.) 

(e) Timewell v. Perkins, 2 Atk. 102. 



1 The rule is, that where an estate is given to a person generally, or indefinitely, with- 
a power of disposition, it carries a fee ; and the only exception is where the testator 
gives to the first taker an estate for life only, by certain and express words, and annexes 
to it a power of disposal. Jackson v. Robins, 16 Johns. 537, 588, per Kent, C. ; Arm- 
strong v. Armstrong, 3 Am. Law Journ. 49, N. S. See infra, ch. 13, § 5 ; [Haralson. 
v. Redd, 15 Geo. 148 ; Cook v. Walker, lb. 457.] 

vol. in. 23 



266 Title XXXVIII. Devise. Ch. XL s. 10—12. 

10. The words "freely to be enjoyed" have been held to 
pass an estate in fee ; as where, after an introductory clause, 
showing an intention to dispose of his whole estate, a person 

gave to his sons, T. M. and R. M. all his lands and tene- 
209* ments, *" freely to be enjoyed and possessed alike;" it 

was held that a fee passed. But in a modern case, these 
words were not allowed to have so extensive an effect, (a) f 1 

11. In another modern case, it was held, that a devise to the 
testator's wife of " all his property, both personal and real, for- 
ever," passed the fee in the real estate ; and that the devisor's 
intent to use those words in a more restricted sense, was not 
shown by a subsequent clause of the will, whereby he gave an 
additional annuity, after the decease of his wife, to a person to 
whom he had before given a smaller annuity, preceding the de- 
vise to tHe wife, (b) 

12. A person devised to Agnes Pearson, who was his heir at 
law, for and during her life, " to be enjoyed by her without moles- 
tation, and after her death to her lawful issue, and if she should 
have no issue, that she should have power to dispose thereof at 
her will and pl'easure." The Court was of opinion, that Agnes 
took an estate in fee simple, as the contingent remainder to the 
issue never vested ; for the testator, by giving her power to dis- 

(a) Loveaores v. BJight, Cowp. 352. Goodright v. Barrou, 11 East, 220. (Willis v. Buoher, 
3 Wash. 369.) 

(4) Doe v. Eoper, 11 East, 618. (Morrison v. Semple, 6 Binn. 94. Jackson i>. Housel, 17 
Johns. 281.) 



t [The case of Loveacres v. Blight is distinguishable from that of Goodright v. 
Barron, referred to by our author. In the former, the testator by his will charged the 
estate in question with an annuity to his wife for her life, and with as much woodcraft 
thereout as she might have need of; so that "freely to be enjoyed and possessed" 
could not, as Lord Mansfield observed, mean free from incumbrances, but must mean 
free from all limitations ; that is, the absolute property in the estate. In Goodright v. 
Ban-on there was no charge upon the estate ; and the expression " freely to be possessed 
and enjoyed," being ambiguous, might mean free from incumbrances; and; therefore, 
they were held not to furnish a sufficient indication of intention to take the case out of 
the general rule of construction, established by Denn v. Gaskin, and other cases, cited 
in a subsequent chapter. See also Oates v. Brydon, 3 Burr. 1895, as to the general 
rule.] 

1 See the comment of Mr. Just. Story on these two cases, in Wright v. Denn, 10 
Wheat. 243, 244. See also Doe v. Roberts, 11 Ad. & El. 1000 ; infra, $ 51, note ; post, 
ch. 13, § 5, note. 



Title XXXVIII. Devise. Ch. XL s. 12— U. 267 

pose thereof at her will and pleasure, in case she had no issue, 
had given her a fee simple, (a) 

13. A devise "for the benefit of children during 1 their minority '," 
without any further disposition, has been held in some cases to 
give such children an estate in fee simple. 

14. A person devised the residue of his real and personal estate 
to trustees, their heirs, executors, and administrators, " in trust 
to pay and apply the produce and interest thereof for the main- 
tenance and benefit of such of his grandchildren by his only 
daughter N. as should be living at the time of his decease, until 
his said grandchildren should attain the age of twenty-one years 
or be married ; " and made no further disposition of his 

* estate, but only directed that if all his trustees should * 210 
die, his son-in-law N.,the husband of his daughter, should 
be a trustee, (b) 

Lord Macclesfield said, the intention was most plain, that the 
grandchildren should have the surplus both of the real and per- 
sonal estate, after the age of twenty-one, for it could not be im- 
agined that the testator should show a concern for his grand- 
children, when they did not want it, and leave off that care at 
the only time when they could be supposed to stand in need of 
it, namely, when they came of age, and were marriageable. Be- 
sides, it was plain the testator gave all from the heir at law, by 
vesting the whole estate in fee, as well as the legal property of 
the personal estate, in trustees ; which would not have been done 
had anything been intended to remain to the daughter and 
heir ; not only the interest but the produce of the real and per- 
sonal estate was to be applied by such trustees ; and to help this 
plain intention of the testator, the word produce should be taken 
in the larger sense, and then it would signify whatever the estate 
would yield, by sale or otherwise ; and this case was the stronger, 
in regard the son-in-law was to be a trustee, in case the other 
trustees should all die; but it could not be intended that the 
son-in-law should be a trustee for himself, or for what himself 
would be entitled to, should it come to his wife. 

It is reported in Atkyns, that Lord Hardwicke said, he could 

{a) Goodtifle v. Otway, 2 Wils. 6. Vide Tomlinson v. Dighton, infra, c. 13. 
Ifi) Newland v. Shephard, 2 P. Wins. 194. 



268 Title XXXVIII. Devise. Ch. XL s. 14—17. 

see no reason to approve of this case. It has, however, been 
admitted as an authority in the following one. (a) 

15. G. P. devised all the rest, residue, and remainder of his 
real and personal estate to two trustees, " in trust for his younger 
son G., till he attained twenty-one, and then the trust was to 
cease." (b) 

Lord Henly, after taking time for consideration, delivered his 
opinion, that G. was intended to have the whole beneficial inter- 
est in the residue of the real and personal estate ; and that the 
trust was to continue only during his minority ; that it was the 
same as if the testator had said, — " I give the estate to trustees, 
in trust for G. till he attain twenty-one, and then to G. and his 
heirs;" and that Shephard v. Newland was a much stronger 
case, (c) 

16. A devise to trustees in fee, " in trust for A. B." without 
any words of limitation, has been held to pass the whole bene- 
ficial interest, or fee simple, to A. B. 

17. Upon a case sent out of Chancery, for the opinion 
211 * of the * Court of K. B., the facts were : A person had 
devised to trustees and their heirs a certain estate, in trust 
for Joan, the wife of John Pippet, and James her son ; one moiety 
of the profits to be applied by the trustees to the separate use of 
the said Joan, and the other moiety to be laid up, or otherwise 
improved, till the said James should arrive at his age of twenty- 
one years. And his will was, that if the said Joan should die 
during the minority of the said James, the trustees should lay up 
the increase and profits of the mother's moiety, for the benefit of 
her son ; and after the decease of the said Joan, should permit 
and suffer the said James to enter upon and enjoy the whole, as 
soon as he attained the age of twenty-one years, (d) 

It was insisted, that James took only an estate for life, because 
no words of inheritance were added to the devise to him. That 
the argument drawn from the cases in Peere Williams and 
Ambler, that the beneficial interest which the devisee took was 
co-extensive with the legal interest devised to the trustees, was 

(a) 3 Atk. 316. <fi) Peat v. Powell, Amb. 387. 1 Eden, 479. Supra, eh. 10, s. 23. 

(c) Doe v. Roper, 11 East, 518, Doe v. Clayton, 8 East, 141. 

(d) Challenger ». Sheppard, 8 Term K. 597. (See 2 Pow. Dev. 407-409, by Jarman, 
where this case is commented on.) 



Title XXXVIII. Devise. Ch. XL s. 17. 269 

untenable, because it tended to show, that in all cases, where an 
estate was given to trustees and their heirs, in trust, the cestui 
que trust must take a fee. But the estate of the cestui que trust 
was not to be measured by the estate devised to the trustees, and 
a contrary doctrine had at all times prevailed, namely, that the 
heir at law takes whatever is not expressly devised away from 
him. 

It was said in reply, that it was not necessary to contend that 
the heir at law would take whatever was not devised away from 
him, because here the fee was expressly given to the trustees ; 
and by that devise the testator had manifested his intention that 
the heir at law should not take. Then if the estate did not de- 
scend to the heir at law, the question was, to whom it was 
devised. And the two cases, cited from Peere Williams (a) and 
Ambler, showed, that the law had already put a construction on 
a will framed like the present, and had said that the cestui que 
trust should take a beneficial interest in the whole that was de- 
vised to the trustees. 

The Court gave no opinion when the case was argued, but 
certified that John Pippet took a beneficial interest in fee. 1 

(aj (Newland v. Shephard, 2 P. Wins. 194. See 2 Pow. Dev. 409, by Jarman.) 



1 An intention to give a fee simple has also been inferred from the words used, in 
the following cases. " To my wife one third part of all my effects, the improvements 
excepted. To my son James the improvement whereon I now live." Anon, 3 Dall. 
477. A devise to A, " and if he shall die without an heir," then over. Lippett v. Hop- 
kins, 1 Gall. 454. " All my goods and effects, both real and personal?' Ferguson v. 
Zepp, 4 Wash. 645. A devise to A, B and C, "the longest liver to have all." Deve- 
nish v. Smith, 1 Har. & M'Hen. 148. That J. G. should " have his land." Guthrie v. 
Guthrie, 1 Call, 7. The word "leasehold," where the intent is clear. Saylor v. Kocher, 
3 W. & S. 163. So, "1 give my lands." Smith v. Berry, 8 Ham. 365. (But see 
Wright v. Denn, 10 Wheat. 204.) So, I " give and bequeath my share " in certain lands. 
Paris v. Miller, 5 M. & S. 408. [So, "my part coming from the estate of my father." 
Peppard v. Deal, 9 Barr. 140.] 

So, by a devise to trustees, in fee "for the use and benefit of A. B." without words 
of limitation to the latter ; it was held that A. B. took a beneficial interest in fee. 
17 Law J. 400, Chan. ; Bass v. Scott, 2 Leigh, 356. So, where a devise was to trustees 
in fee " upon trust for the use and benefit of my natural Mustee boys, B., B., C," and 
others named in the will, without any words of limitation to the boys, it was held that 
they took the beneficial interest in fee. Meoro v. CleghOrn, 12 Jur. 591 ; in which the 
cases of Challenger v. Sheppard, 8 T. E. 597, and Knight v. Selby, 3 Man. & Gr. 92 ; 
3 Scott, N. B. 409, were commented on and followed. So, a devise of wild lands, in 

23* 



270 Title XXXVIII. Devise. Ch. XL s. 18—20. 

18. The quantity of estate intended to be given by a devise 
may be described either by express words, or by reference to 

another devise in the same will, or in any other instru- 
212* ment. If * therefore a testator devises Blackacre to A 

and his heirs, and Whiteacre to B, to hold in the same 
manner as A holds Blackacre, B will take an estate in fee sim- 
ple in Whiteacre. (a) 

19. A person made his will in these words : " I devise to my 
eldest son and his heirs Blackacre for his part. Item, I devise 
to my second son, Whiteacre for his part." Adjudged, that the 
second son took a fee ; because the words had a reference to the 
part of the eldest son. (b) 

20. Where the introductory clause, prefixed to a devise, shows 
that the testator intended to depart with his whole interest, the 
subsequent words will, if possible, be construed so as to pass an 

(a) Perk. s. 561. Vide c. 13 ss. 10 & 11. 

(6) 1 Roll. Rep. 369. 3 Bulst. 127. [8 T. R. 597.] 



Maine and Massachusetts, carries a fee. Russell v. Elden, 3 Shepl. 1 93 ; Sargent v. 
Towne, 10 Mass. 303. And see Caldwell v. Ferguson, 2 Yeates, 250. So, by a devise 
to his wife, of " half his plantation for life," and to one nephew " two thirds of the 
plantation except what was already willed to his wife," and the other third to another 
nephew, in the like words ; it was held, that 'the nephews took remainders in fee. 
French v. M'Bhenny, 2 Binn. 13. And see Dunlop v. Crawford, 2 McCord, Ch. 177. 
So, a devise of land, with a manifested expectation that the devisee should receive a 
title from the government, in his own nam* Lindsay v. McCormack, 2 A. K. Marsh. 
229. So, where the devise was "to my son C. and his heirs, the tract of land called A. 
Item. To my son C." (without limitation) " another pareel of land called B. Item. 
To my son C. and his heirs the tract of land called D. ;" with a devise over, if he 
should die within age ; it was held that he took a fee simple in the tract called B. 
Hoxton v. Gardiner, 1 Har. & M'Hen. 437. 

Other cases of the like construction, upon the face of the will and its peculiar lan- 
guage, are, Packard v. Packard, 16 Pick. 191 ; Baker v. Bridge, 12 Pick. 27; Eliot v. 
Carter, 12 Pick. 436 ; Clafiinjp. Perry, 12 Mass. 425 ; M'Afee v. Gilmore, 4 N. Hamp. 
391 ; Everts v. Chittendon, 2 Day, 338 ; Goodrich v. Lambert, 10 Conn. 448 ; 
Throop v. Williams, 5 Conn. 98 ; Den o. Gifford, 4 Halst. 46 ; Hill v. Hill, 5 G. & J. 
87 ; Aspinall v. Andus, 7 Man. & Gr. 912 ; [Reifsnyder v. Hunter, 19 Penn. (7 Har- 
ris,) 41 ; Wood v. Hills, lb. 513 ; Glenn v. Spry, 5 Md. 110.] 

The word " moiety," which is generally accompanied by the word " half-part," as 
synonymous or explanatory of its force, carries with it the signification of the part or 
interes/ which the party takes in any subject-matter; so that when a man devises 
" Ms moiety" he devises his half-part or interest which he has in the thing devised. 
Therefore, a devise to B. of " my moiety of the house he now lives in," was held to give 
the devisee a fee simple. Doe v. Eawcett, 3 Man. Gr. & Sc. 274, 283. 



• Title XXXVIII. Devise. Ch. XL s. 21—23. 271 

estate in fee, and to prevent an intestacy as to any part of the 
testator's property. 1 

21. A cestui que trust in fee of a copyhold estate, made his 
will in these words : " All the estate I have I intend to settle in this 
manner, viz. : my estate at Kirby Hall I give to my dear brother, 
and after his decease my desire is that it should be disposed of 
to Mr. W. Tuffnell." (a) 

Lord Hardwicke. — " I think the inheritance passes. All cases 
of this nature depend on the circumstances attending them ; and 
in my opinion, the introductory clause of this will is decisive. 
He mentioned his intent to settle his estate, from whence it is 
plain that he proposed making an absolute disposition of the 
premises, which could not be, were the devisee to have but an 
estate for life." 

22. A testator began his will in these words : "As touching 
my worldly estate, wherewith it has pleased God to bless me, I 
give, devise, and dispose of the same in the following manner." 
He then gave to his mother all his estate at N. with all his goods 
and chattels, as they then stood, for her natural life ; and to his 
nephew T. D. after her death, if he would but change his name : 
if he did not, then he gave him only £20 a year, to be paid to 
him for his life, out of N. close and the farm held at E. which he 
gave her, upon his nephew's refusing to change his name, and to 
her and her heirs for ever, (b) 

It was decreed by Lord Talbot that the nephew took an estate 
in fee, for the intent plainly appeared to pass the inheritance. 
The determination however in this case was not founded en- 
tirely on the force of the introductory clause. 

23. [In the recent case of Wilce v. Wilce, the intro- 
ductory * words expressing an intention to dispose of all * 213 
the testator's worldly property, coupled with a residuary 

(a) Tuffnell v. Page, MS. E. 2 Atk. 37. (Winchester v. Tilghman, 1 Har. & M'Hen. 452.) 
(6) Ibbetson v. Beckwith, Forr. R. 157. (Supra, oh. 9, § 7. Kennon v. M'Eoberts, 1 

Wash. 96. Watson u. Powell, 3 Call, 265. Davies v. Miller, 1 Call, 127. Lamberts. Paine, 

3 Cranch, 131.) 



1 See supra, ch. 9, § 7, note. Infra, § 81. But such introductory clause will not 
carry an estate that is clearly omitted. Busby v. Busby, 1 Dall. 226 ; [Peppard v. 
Deal, 9 Barr. 140; Wood v. Hills, 19 Penn. (7 Harris, 513) ; McCullough v. Gilmore, 
11 lb. 370 ; Moon v. Moon, 2 Strobh. Eq. 327.] 



272 Title XXXVIII. Devise. Ch. XL s. 23—26. ' 

disposition of all the rest of the testator's worldly goods, &c, 
" and every thing else he died possessed of," to his son George, 
were held to give him the fee in lands of the testator not specifi- 
cally devised.] (a) 

24. In some modern cases, the courts have refused, in the con- 
struction of a will, to connect the introductory clause with that 
which contained the devise. (5)f 

25. As the word "estate " signifies the entire interest which the 
tenant has in a real hereditament, it follows that where a man 
grants " all his estate " in Dale to A and his heirs, every thing 
which he can grant will pass thereby; and it has long been 
established, by analogy from this principle, that in a will, the 
words " all my estate" pass a fee simple, (c) x 

26. A person devised to his wife his " whole estate" paying 
debts and legacies. Adjudged, that the wife took a fee by the 

(o) 7 Bing. 664. 

(J) Frogmorton v. Holyday, infra, § 85. (Busby v. Busby, 1 Dall. 227.) 

(cj Tit. 1, „. 8. 1 Inst. 345, a. Kandall v. Tuohin, 6 Taunt. 410. [8 Ves. 604.] 



[t Doe v. Buckner, 6 Term Rep. 610; 3 Ves. & B. 160, 164. In addition to the 
authorities cited by the author, the following may be added in which the word estate 
used in the introductory clause in the will, accompanied with the usual expression of 
intention to dispose of the testator's worldly estate was held of itself not sufficient to 
enlarge the subsequent devises in the will to a fee. Loveacres v. Blight, Cowp. 352-4; 
Denn-v. Gaskin, ib. 657; Wright u. Russell, cited ib. 661; Doe v. Allen, 8 T. K. 
497, 503; Goodright v. Barron, 11 East, 220; Doe v. Eavell, 2 Crom. & Jer. 617; 
Doe v. Gwillim, 5 Bar. & Adol. 122.] 

1 The word " estate " seems to have been principally or wholly relied on, in the fol- 
lowing cases, as evincing the testator's intention to give a fee simple. Lambert v. 
Paine, 3 Cranch, 97; Campbell v. Carson, 12 S. & R. 54; Brown v. Wood, 17 Mass. 
63; Jackson v. Merrill, 6 Johns. 185; Carr v. Jeannett, 2 M'Cord, 66; Davies v. 
Miller, 1 Call, 127 ; Butler v. Little, 3 Greenl. 239 ; Caldwell v. Ferguson, 2 Yeates, 
250; Kellogg v. Blair, 6 Met. 322; Godfrey v. Humphrey, 18 Pick. 537; Allen v. 
Hoyt, 5 Met. 324 ; Josselyn v. Hutchinson, 8 Shepl. 339 ; Wilkinson v. Chapman, 3 
Russ. 145 ; Whaley v. Jenkins, 3 Desau. 80 ; Hamilton v. Hodsdon, 11 Jur. 193 ; Doe 
v. Williams, 1 Exch. R. 414 ; 17 Law J. 51, Exch. ; Jackson v. Babcock, 12 Johns. 389 ; 
Tracy v. Kilborn, 3 Cush. 557 ; [Leavitt v. Wooster, 14 N. H. 550 ; Pottow v. Ericker, 
5 Eng. Law and Eq. Rep. 443.] 

But the word "-estate " does not always and of necessity include real property. See 
Saunderson v. Dobson, 1 Exch. R. 141 ; Supra, ch. 10, § 69, note. 

[The word "estate" in a will, applied to real property, may express either the quan- 
tity of interest devised, or designate the thing devised, or both; and the sense in 
which it is used must be determined from the will itself. Hart v. White, 26 Vt. 
(3Deane,)260.] 



Title XXXVIII. Devise. Ch. XL s. 26—29. ■ 273 

force* of the words, "my whole estate ; " for they extended to his 
land, according to the common parlance, and also to all his estate 
in the land, (a) 

27. A person, having copyhold estates which he had surren- 
dered to the use of his will, devised in these words, — "All other 
my estate, of what nature soever, I give to my wife Joan, whom I 
make my executrix, to pay my debts and legacies therewith." 
Resolved, that the inheritance passed, (b) 

28. In a case which has been already stated, it was held that 
the words, " all other my estate, real and personal" passed certain 
rents of which he was seised, and all his estate therein ; for all 
his estate was a description of his fee. (c) 

29. A person devised " all her lands and estate in Upper Cotes- 
by with all their appurtenances? to W. E. It was objected, that 
only an estate for life passed in these lands ; for where a man 
devises his land and estate in such a place, it describes only the 
thing and not the interest in it ; and the words in Upper 
Catesby * did nothing but point out the locality of the * 214 
thing ; and lands and estate in this case were synony- 
mous, (d) 

Sir J. Jekyll said, the case of Bridgewater v. Bolton seemed 
to have settled the law in this point, it being a resolution given 
on great consideration, in which Lord Cowper, when of counsel, 
discouraged a writ of error in Parliament. And Lord Holt, who 
pronounced the judgment of the Court, laid it down as a rule, 
that a devise of all one's real estate, comprehended not only the 
thing, but also the interest in it. The word " estate " naturally 
signified the interest rather than the subject, and its primary 
signification referred thereto ; and though the devise was of all 
her land and estate in Upper Catesby, this was not restrictive 
with respect to the estate intended to pass by the will, but only 
as to the land ; as, if the testatrix had land in another parish, 
suppose for instance in Lower Catesby, those lands in Lower 
Catesby could not have passed by the will ; and as the word 
" estate " has been agreed and settled to convey a fee in a will, 
it would be dangerous to refine upon it, for then none could give 

(a) Johnson v. Kennan, 1 Roll. Ab. 834. (J) Lane v. Hawkins, 2 Show. 328. 

(e) Bridgewater v. Bolton, c. 10. 

(d) Barry v. Edgworth, 2 P. Wms. 523. 



274 Title XXXVIII. Devise. Ch. XL s. 29—30. 

any opinion thereupon ; and these words or the like were fre- 
quently made use of in wills ; besides, the word " estate" if it 
did not pass a fee in the present case, would be quite void, since 
the devise of the lands did before of itself pass an estate for life ; 
and no word in a will should be rejected, that could have any 
construction. 

30. A person devised in the following words : " I give unto 
my wife, for so long as she shall live, all that estate I bought of 
Mr. Mead, with its apurtenances. Item, I give to my son 
Josiah Gale, part of that estate called Southfield, to him and his 
heirs for ever. Item, I give to my son Isaac Gale, the other part 
of that estate, to him and his heirs for ever ; but if either of 
them shall die without issue, the survivor shall take the whole. 
Item, I give to my son Charles, all that estate I bought of Mr. 
Mead, after the death of my wife." The question was, what in- 
terest Charles took in Mead's estate, (a) 

Lord Hardwicke. — " The first point is, whether an estate for 
life or in fee passed by the devise of that estate which he bought 
of Mead ; and I am of opinion that it extends as well to a gift 
of the thing itself, as of his whole interest in it. So have been 
all the later determinations, upon the reason that «ien are 
inopes consilii when malting their wills, which was the 
215 * case * here : for this will, if not made by the testator him- 
self, was certainly made by some very unskilful person. 
However, his intention appears to dispose of his whole estate 
among his children. In all the modern cases, where the word 
" estate " is used, it has been held to pass a fee, unless there be 
some words used to restrain that generality ; for estate is genus 
generalissimum, as held by Lord Ch. J. Holt in the case of 
Bridgewater v. Bolton. It was objected, that there should have 
been the word my, but the want of it makes no difference, for the 
words, all the estate I bought of Mead are fully sufficient to carry 
as well the whole interest, as the thing itself. It was next 
objected, that where the testator gives but a life estate to his wife, 
he has used the very same words ; but no argument can thence 
be drawn, that where he has not expressly given an estate for 
life, he did not mean to give a fee, but it rather turns the other 
way. He apprehended those words might give a fee, and has 

(a) Bailis v. Gale, MS. Rep. 2 Vez. 48. 



Title XXXVIII. Devise. Ch. XL s. 30—33. 275 

therefore restrained them, in his wife's case, to an estate for life ; 
but adds no restraint where he meant to give them their full 
scope. But what weighs most in all those cases is, that the 
testator is making a division of his whole substance among his 
children, and, as I said before, presumed to be inops consilii, 
and his intent therefore shall be carried into execution. This 
case is stronger than that of Ibbetson v. Beckwith, whenee arises 
another answer to the objection of his having the word " estate," 
as well where he makes a devise to his wife for life only, as in 
that in question ; and shall therefore not be presumed to intend 
different interests, viz. the incorrectness of the will. This was 
given as an answer by Lord Talbot, and is equally so upon this 
will, which is also a very incorrect one." (a) 

31. A person being seised in fee of a house and land at Bray- 
wick, in the county of Berks, devised the same in the words 
following: — " I give and bequeath to Mrs. Marten my estate at 
Braywick, Berks." It was contended that these words did not 
pass a fee, for want of the word all; but the Court held that the 
devisee took an estate in fee. (6)f 

32. [The circumstance of the word ^estate" being used in 
other parts of the will, in giving an estate for life merely, will 
not restrain its effect in other devises. Thus in the recent 

case of * Wilkinson v. Chapman, the testator gave all his * 216 
real estate, lands, and hereditaments, in P. to his daughter, 
her heirs and assigns, and if she should die under twenty-one, he 
gave his said estate, lands, and hereditaments, to his wife, for life, 
and after her decease he gave the said estate, lands, and heredita- 
ments unto the children of S. H., to be equally divided amongst 
them as tenants in common. Lord Gifford, M. E.., decided that 
the chidren of S. H. took the fee. (c) 

33. Similar to the above, is the decision of the Court of C. B. 
in the later case of Gall v. Esdaile, overruling the decision of 

(a) Supra, ». 22. Infra, § 81. Price v. Gibson, 2 Eden, 115. 

(A) Holdfast v. Martin, 1 Term R. 411. [Eoe v. Wright, 7 East, 259. Doe v. Clayton, 
8 East, 141.] Chichester v. Oxendon, 4 Taunt. 176. Chorlton v. Taylor, 3 Ves. & B. 
160. 

(c) 3 Euss. 145. See also Randall v. Tuchin, 6 Taunt. 410. Eoe v. Bacon, 4 M. & Sel. 
366. 



[t See also Harding v. Gardner, 1 Bro. & Bing. 72 ; 3 Moore, 365, which case seems 
to have overruled Pettiward v.. Prescott, 7 Ves. 541.1 



276 Title XXXVIII. Devise. Ch. XL s. 33—39. 

Sir John Leach, M. R. In that case, the devise was, " As to the 
rest of my estate, the two houses, one in St. John's Lane, and 
the other in Fogwell Court, in Charter-house Lane, I give to 
my wife Mary Mayer, for life ; and after her decease, that in St. 
John's Lane, to my daughter M. M., the other between my 
sons John and Joseph, to be equally divided ; it was decided, 
that the daughter took the fee in the house in St. John's 
Lane." (a) 

34. These two cases last stated, and the authorities referred to 
in the margin; are distinguishable from Roe v. Blackett, it is pre- 
sumed from the circumstance, that in the latter the word " estate " 
was expressly omitted in the devise over, (b) 

35. In that case, the testator devised to his wife all freehold 
and leasehold houses, lands, and tenements, and all Ms estate 
and interest therein for life, and after her decease, he devised his 
said messuages, houses, lands, and tenements, to A, B, and C, as 
tenants in common; it was decided that the latter took only 
estates" for life. 

36. In some measure resembling the above, is the recent case 
of Doe v. Tucker, where the testator gave and bequeathed " his 
freehold estate called P.," to his wife, for life, after her death all 
the above bequeathed lands, goods, and chattels, to his sons Rich- 
ard, Thomas, and Robert, share and share alike; the Court of 
K. B. held the sons took only life estates, (c) 

37. In some instances, the operation of the word " estate" has 
been confined by the context. 

38. Thus, where the testator gave " all Ms estates in H., 
F., and MP to his nephew G. E., and other estates to other 
nephews, and in a subsequent part of the will expressed his 
intention to prevent waste by making his nephews tenants for 

life only.] (d) 
217* *39. The words "testamentary estate" will also pass 

a fee simple, where there is an introductory clause indi- 
cating an intention to dispose of all the testator's property, [or 
contains a gift of a nominal sum to the heir.] (e) 

(a) 8 Bing. 323. 1 E. & Myl. 540. Uthwatt v. Bryant, 6 Taunt. 317. 
(6) Cowper, 235. 

(c) 3 B. & Adol. 473. (d) Bruce v. Bainbridge, 2 Bro. & Bing. 123. 

(e) Smith v. Coffin, 2 H. Black. 444. Doe «. Gilbert, 3 Bro. & Bing. 85. [Bradford v. Bel- 
field, 2 Sim. 264.] 



Title XXXVIII. Devise. Ch. XL s. 40^16. 277 

40. But where the word " estate " is used only for the purpose 
of describing the local situation of the lands devised, it will not 
have the effect of passing an estate in fee simple, as will be 
shown in a subsequent chapter, (a) 

41. It has been decided, in a late case, that the words " all my 
real property'''' will carry an estate in fee simple.' 

42. A copyholder devised his estate in these words : " I do 
• will and bequeath all my real and personal property to my 

wife." (b) 

Sir W. Grant said, that in the absence of direct authorities 
upon the subject, he thought the testator must be considered to 
have intended to pass his whole interest, as he did not see how a 
man could be said to give all his property, unless all his interest 
in it passed. It seemed in many cases that the Judges had ex- 
plained the meaning of the word " estate," by saying that it im- 
ported the absolute property. 

43. [The word "property," is of the same import as " estate," 2 
and although it is sufficient to pass the fee, yet like the word 
" estate" it may be restricted in its operation by the context. 

44. Thus, in the recent case of Doew. Clarke the word "prop- 
erty " was construed in a restricted sense, in reference to local 
situation ; the testator in that case, after charging such part of 
his property as might be necessary for the payment of his debts, 
gave to his brother R. C. all that dwelling-house, &c, with all lands 
appertaining to the same, lately in the possession of G. S., of W., 
or his mortgagee, the said property lying and being in the town- 
ship of W. ; the Court of Exchequer held that R. C. took only 
a life estate in the premises in W.] (c) 

45. A devise of all a person's " right, title and interest " in a 
house will pass an estate in fee simple in it. 

46. Thus, where a woman, being tenant for life of a house, 
with the remainder in tail to her son, and the reversion in fee in 

(a) Ch. 13, ss. 38 and 40, and note a. 

(J) Nieholls v. Butcher, 18 Ves. 193. [See also, Doe v. Roper, 11 East, 518. Doe v. Lang- 
lands, 14 East, 370. Roe v. Pattison, 16 East, 221. Sharp v. Sharp, 6 Bing. 630.] 
(c) 1 Cro. & Mee. 39. (Billing v. Billing, 5 Sim. 232.) 



' So, a devise of " all my landed property,' 1 gives a fee. Fogg v. Clark, I N. Hamp. 
163; [roster v. Stewart, 18 Penn. State K. (6 Harris,) 23.] 
2 See Jackson v. Housel, 17 Johns. 281 ; Mayo v. Carrington, 4 Call, 472. 

vol. in. 24 



278 Title, XXXVIII. Devise. Ch. XL s. 46—50. 

herself, devised " all her right, title, and interest " in the house 

to her son. It was held by the Court of K. B., contrary to the 
opinion of Holt, that the son took an estate in fee simple, 

218 * which * was affirmed by the House of Lords. The decis- 
ion was however founded on the circumstance, that the 

son having already an estate tail in the house, if he took no more 

by the will than an estate for life, he had really nothing given. 

But in a modern case, the words, all his " part, share and interest," 

were held to pass a fee. (a)f 

47. A person devised " all his part, share, and interest " of and 
in the estates of T. C. unto his sister for life ; and from and after 
her decease he gave the same to J. S. (b) 

Lord Kenyon held, that these words passed an estate in fee to 
J. S. ; and said there was no doubt but that the word interest 
would pass a fee. 

48. The words, " all the rest and residue of my real and per- 
sonal estate," have been, in most cases, deemed sufficient to pass 
an estate in fee simple. 1 ^ 

49. A devised £50 to his heir at law, and then gave " all the 
rest and residue of his real and personal estate " to his wife. It 
was decreed, that the wife took an estate in fee simple in the real 
estate of the testator, (c) 

50. A will was made thus : — " As to all my temporal estate 
with which it has pleased God to bless me, I dispose of the same 
as follows." Then there were several bequests, and then came 
these words : " And all the rest of my estate, goods, and chattels 

(al Cole v. Kawlinson, 3 Bro. Pari. Ca. 7. (1 Salk. 233. 2 Ld. Eayrn. 831, S. C.) 1 Salk. 
234. [See also Sharp ». Sharp, ubisup.] (6) Andrew v. Southouse, 5 Term K. 292. 

(c) Murray v. Wise, Preo. in Cha. 264. 2 Vern. 690. [Forr. 284.] 



[tA devise of "my share of the B. and other estates at, &c." (the testatrix being 
seised of an undivided fifth of the estates atB.) was held to pass a fee. Paris v. Mil- 
ler, 5 M. & S. 408.— Note to former edition. Also 5 T. R. 292.] 

[t But may be qualified by the will's context. See Doe v. Hurrell, 5 Bar. & Aid. 
18.] 

1 This rule has been applied in the following cases, in which an intent to dispose 
of the residue was apparent, though variously expressed. Doe v. Pedley, 2 Gale, 
106 ; Davenport v. Coltman, 9 M. & W. 481 ; Pitman v. Stephens, 13 East, 505 ; Carr 
v. Porter, 1 M'Cord, Ch. B. 60; Farmer o. Francis, 2 Sim. & Stu. 505; Parker v. 
Parker, 5 Met. 134; Kennon v. M'Eoberts, 1 Wash. 96; Eraser v. Hamilton, 2 
Desau. 578; [Eorsaith v. Clark,'l Foster, (N. H.) 409; Armstrong v. Kent, 2 Halst. 
Ch. K. 559, 637 ; Donnovan v. Donnovan, 4 Harring. 177.] 



Title XXXVIII. Devise. Ch. XI. s. 50—52. 279 

whatsoever, real and personal, I give to my beloved wife." Ad- 
judged, that the words in this will were the same as if the tes- 
tator had said, " I devise the rest and residue of my temporal 
estate ; " which therefore passed a fee simple, (a) 

51. In the case of Shaw v. Bull, Lord Ch. J. Trevor said, — 
" In the construction of wills generally, the words, ' my estate, 1 
' the residue of my estate] or ' the overplus of my estate] may 
well pass an inheritance, where the intent is apparent to pass it. 1 
But such intent to carry an inheritance by such words must be 
very apparent, and necessary to be drawn from the words of the 
will, and circumstances of the case ; for if the words be indif- 
ferent to real and personal estate, or may be applied to per- 
sonal * alone, there the heir at law is not to be disinherit- * 219 
ed by the implication of such words, or by any implication 

at all, but what is a necessary one." (6) 

52. A testator,' taking notice of a jointure he had made, of one 
moiety of an estate, upon his wife, gave her the other moiety for 
life, for her better support and maintenance ; and also gave her 
a house and parcel of land for her life ; then he gave several 
other estates to his relations for life, remainder in tail, remainder 
in fee ; and then devised in the following words : " All the rest, 
residue, and remainder of my goods and chattels, and per- 
sonal estate, together with my real estate not hereinbefore de- 
vised, bequeathed or disposed of, I give, devise, and bequeath to 
my wife." (c) 

The testator had an advowson and wharf which were not 
devised at all ; and the question was, whether the fee of the 
advowson and wharf, and the reversion of the particular estate 
expressly given to the wife for her life, passed to her, by the re- 
siduary clause. 

Lord Hardwicke. — " The estates not mentioned in the will 
clearly pass by the residuary devise, the word ' estate ' importing 
a fee, and therefore the fee of those estates is well devised by the 

(o) Tanner v. Wise, 3 P. Wms. 295. Cliffe v. Gibbons, 2 Ld. Raym. 1324. [1 Vez. 10] 
(b) 12 Mod. 596. (c) Kidout ». Payne, MS. Rep. 1 Vez. 10. 3 Atk. 486. 

'An entire will, in these words, — "I give and bequeath to my wife all my lands, 
messuages and tenements, by her freely to bepossessed and enjoyed, with all my property 
whatsoever," — was held to pass a fee. Doe v. Roberts, 11 Ad. & El. 1000. And see 
supra, § 10 ; Wright v. Denn, 10 Wheat. 243, 244. 



80 Title XXXVIII. Devise. Ch. XL s. 52—53. 

residuary clause. As to the parcels devised to the wife for life, 
I am also of opinion, that the fee of the reversion passes by the 
residuary clause ; and that the fee of the estates, particularly 
given before by the same will, passes by these words, appears 
from Allen, 28, 2 Vent. 285, and 3 Mod. 228. The only 
question then is, whether there be any particular circumstances 
to take this case out of the general rule ;• and two things have 
been insisted on, viz. the recital in the devise of the moiety, that 
the testator intended no more than . a provision for life ; but 
plainly that was not his intent, for he has given his wife his 
personal estate, not for life, but absolutely ; and it is as clear 
that the real estate, riot particularly taken notice of, passes like- 
wise to her in fee. It is therefore inferring too much from this 
recital, that he . meant to give her nothing but for life, since he 
might as well intend to give her the absolute property, for her 
better maintenance. The second thing insisted on is, that here 
are particular devises of some- estates to the wife, and that the 
residuary devise being to the same person, it would be incon- 
sistent to make the testator give her the same estate, first 
220 * for * life, then absolutely ; the general run of authorities 
being where the devisee for life and the residuary devi- 
see are not the same, but different persons. But I think this will 
not avail : it is too much to say, that where a limited interest is 
given in one part of the will, and a general one in another, that 
the devisee must be confined to the particular interest ; though I 
will not say how it would be, if absolute negative words were 
used : as, for life only. The law supposes that a man may vary 
his intent, even while he is writing his will, which frequently 
happens. But there is a particular argument furnished from this 
will, in support of this construction, for here are remainders lim- 
ited over in fee of other estates given by the will, which shows 
that where the inheritance was meant to be absolutely disposed 
of, from the wife, it is done so by the will ; and that what the 
testator intended to give his heirs, is taken by way of exception 
out of the inheritance." 

53. A person begun his will thus : " As to all my temporal 
estate, wherewith it hath pleased God to bless me, I give and de- 
vise the same as follows." Then he gave several legacies to A, 
and directed him to sell all or any part of his real and personal 



Title XXXVIII. Devise. Ch. XL s. 53—58. 281 

estate, for the payment of his debts and legacies ; and concluded 
his will with this residuary devise : " As to all the rest of my 
goods and chattels, real and personal, movable and immovable, 
as houses, gardens, tenements, my share in the copperas works, 
&c, I give to the said A ; " without using the word " estate " or 
any words of limitation whatever. Lord Hardwicke doubted at 
first, but was afterwards clearly of opinion, as the testator had a 
fee, that A took a fee. (a) 

54. A person seised of shares in the corn market of the city of 
London, devised to his nephew the income of his shares in the 
corn market, for his natural life ; and " all the rest of his estates" 
with all moneys in the stocks, &c, to be divided into equal shares, 
to Eliz. Snow and four other persons, share and share alike. It 
was resolved, that the last clause comprehended the reversion of 
the shares in the corn market, and carried the absolute inheritance 
in them to Eliz. Snow and the other devisees, (b) 

55. The words, " whatever else I have not disposed of" or any 
other words of a similar import, will pass an estate in fee simple. 

56. Thus, where a person devised his manor of B. to A and 
his heirs ; and then proceeded thus: — "Item, I devise all 

my * lands, tenements, and hereditaments, to the said A. * 221 
Item, I devise all my goods and chattels, money and debts, 
and whatever else I have not before disposed of, to the said A, he 
paying my debts and legacies." (c) 

Lord Ch. J. Trevor held, that under the concluding clause, 
whatever he had not disposed of, an estate in fee passed. 

57. The word " remainder," or " reversion," after a disposition 
of a particular estate, will pass an estate in fee simple. 

58. A person devised to his sister, and after her decease, " the 
whole remainder " of his lands to his brother, if he survived her. 
Adjudged, that these words could not extend to the quantity of 
the land, but to the quantity of estate in the land ; for the whole 
land was given to the sister for life, so there coujd be no re- 
mainder of that ; therefore it must be the remainder of the estate 
in the land, and by consequence a fee simple passed, (d) 

(a) Grayson v. Atkinson, 1 Wils. E. 333. 

(6) Fletcher v. Smiton, 2 Term E. 656. Hogan v. Jackson, ante, c. 10, § 84. 

(c) Hopewell v. Ackland, 1 Salk. 239. 1 Com. E. 164. [See also Wilce i>. Wilce, vbi 
mp. § 23.] 

(d) Norton v. Ladd, 1 Lutw. fo. 755. (Annable v. Patch, 3 Pick. 360. Cruger v. Hayward, 
2 Desaus. 422.) 

24* 



282 Title XXXVIII. Devise. Ch. XL s. 59—61. 

59. A person devised in these words: — " Also I give to my 
son Charles the reversion of those two tenements now in the 
possession of J. C. ; also I give him the reversion of the tene- 
ments my sister T. now lives in, after her decease." (a) 

Lord Hardwicke said: — "As to the word 'reversion,' lam 
also of opinion that it passes the whole interest. A reversion is 
a right of having the estate back again ; and I think that ac- 
cording to Norton v. Ladd, where the devise was of a remainder, 
this is a good devise of the fee, unless there had been words to 
restrain it. How can the testator be thought to have given but 
a life estate herein to his child, when possibly the life of the 
particular tenant might have lasted longer than that of the child, 
and so the child have taken nothing at all? This proves he 
meant to give him a fee." (b) 

60. It has been a long established rule, in the construction of 
wills, that if a person devises land, with a direction that the de- 
visee shall pay a gross sum out of it, the devisee will take an 
estate in fee simple, without any other words ; though the sum 
directed to be paid should not amount even to a year's rent of 
the land. This construction is founded on the principle that a 
devise of land shall in all cases be intended for the benefit of the 
devisee ; now if a devisee was, in cases of this kind, only to take 
an estate for life, he might die before he received from the land 
the gross sum he had paid, and consequently be a loser by the 

devise, (c) l 
222 * * 61. T. W. devised copyhold lands, of the nature of 

borough English, to his eldest son ; paying 405. to each 
of his brothers and his sisters. Adjudged that he took a fee. (d) 

(a) Bailis v. Gale, 2 Vez. 48, MS. Eep. 
(6) Ante, § 58. Peiton v. Banks, 1 Vern. 65, contra. 

(c) 1 Inst. 9 b. Doe v. Fyldes, Cowp. E. 841. (Willis v. Bucher, 2 Bian. 455. Lithgow 
v. Kavenagh, 9 Mass. 165.) (d) Wellock v. Haraond, Cro. Eliz. 204. 3 Rep. 20 b. 

1 A devise to one, on condition that he convey other lands, of his own, to a third 
pSrson, gives the devisee a fee simple on his performance of the condition. Gibson v. 
Horton, 5 H. & J. 177. 

But in the case of a devise for life, charged with the payment of a sum of money, or 
other duty, the question, whether it shall be enlarged into a fee, is materially affected 
by the question whether the charge is absolute, falling upon the devisee at all events, or 
is contingent and uncertain, as, for example, payable out of the income only. In the 
former case, the devisee will take a fee ; in the latter, he will not. Jackson v. Harris, 
8 Johns. 141 ; Infra, § 68, note; and ch. 13, § 28. 



Title XXXVIII. Devise. Ch. XI. s. 62—68. 283 

62. A testator devised lands to his brother, paying to one 
person 20s., and to others small sums, amounting to 45s. in all. 
The land was of the value of £3 per annum. Adjudged that 
the brother took an estate in fee. (a) 

63. A person devised all his estates to A, paying £40 a-piece 
to his sisters. Adjudged a fee simple. And it appearing that 
the personal estate was not sufficient to satisfy legacies, it must 
consequently be intended his real estate. Besides, the devisee 
was not executor, and therefore it could not be intended of the 
personal estate, (b) 

64. A, by his will, devised lands to B, and then bequeathed leg- 
acies ; and gave £5 to C, and directed B to pay it, but gave him 
two years for that purpose. The jury found the land to be worth 
fifty shillings a year. It was adjudged that B took a fee ; for the 
devise was of a sum in gross, and debitum in prcesenti solvendum 
in futuro. Besides, it was a sum certain, to be paid to B at all 
events, whether the land yielded full five pounds or not ; and so 
not like the cases where the sum devised was to arise out of the 
profits, (c) 

65. A devise of lands charged with the ■payment of debts and 
legacies, will, for the same reason, pass an estate in fee simple. 1 

66. A person devised to his brother, Richard, all his lands, 
'tenements, and hereditaments, and whatever else he had in the 

world ; and made him executor ; desiring him to pay his debts 
and legacies. Adjudged, on a special verdict, that the devisee 
took an estate in fee. (d) 

67. A, seised in fee of lands, made his will, and gave his 
cousin B £20, to be paid out of his lands within one year : and 
after other legacies, he gave all his lands to Eichard, generally. 
Adjudged, that Eichard took an estate in fee. (e) 

68. A will was made in these words,—" All the rest, residue, 
and remainder, of my messuages, lands, tenements, heredita- 
ments, goods, chattels, and personal estate whatsoever, my lega- 
cies and funeral expenses being thereout paid ; I give, devise, and 

(o) Collier's case, 6 Rep. 16. [Moone v. Heaseman, Willes, 140.] 

(6) Moore v. Price, 3 Keb. 49. (c) ReeiAs v. Gower, 11 Mod. 208. 

(<Z) Ackland v. Ackland, 3 Vern. 687. (e) Freak v. Lee, 2 Show. R. 88. 



[Bell v. Scammon, 15 ST. H. 381. 



284 Title XXXVIII. Devise. Ch. XI. s. 68. 

bequeath unto my sister J. D., and constitute and appoint her 
my executrix and residuary legatee, of this my will." (a) 

Lord Kenyon said, that the first words alone were not 
223* sufficient *in law to carry a fee ; but that he relied on the 
words immediately following, "my legacies and funeral 
expenses being thereout paid," as sufficient for that purpose ; for 
the fund which was to answer those demands, ought to be as 
ample as possible. Those charges extended to, and were to be 
taken out of, the property which was before given to the residu- 
ary legatee ; and if that devise did not comprise the whole of the 
devisor's estate, the interest as well as the land, the legacies and 
funeral expenses might not be paid.f J 

(a) Doe v. Richards, 3 Term R. 356. 



[t The authority of the case of Doe v. Richards seems to be considerably shaken, if 
not overruled by the much litigated case of Denn v. Mellor, 5 T. R. 558 ; (2 B. &P. 247 ;) 
infra, ch. 13, s. 33, between which and the above case, it is not easy to discover any 
substantial distinction. In Doe v. Richards the charge cannot well be considered as 
thrown upon the devisee, but on the land. Macdonald, C. B., in Denn v. Mellor, con- 
siders that case as overturning the decision of Doe v. Richards ; and Lord Ellen- 
borough, in Doe v. Snelling, 5 East, 93, observes : "The doctrine and principle of the 
case of Doe v. Richards is right, though perhaps the words to which it was applied, 
will hardly sustain the application, as was considered by many of the Judges, on the 
decision of the case of Denn v. Mellor, in the House of Lords. That was a devise of 
lands, the legacies and funeral expenses being thereout paid ; and those words were 
holden to carry the fee, being considered the same as if the devisor had said, being by 
Mm, (the devisee,) thereout paid. And if those words had been added, the application 
of the doctrine would unquestionably have been right." See also 2 New Rep. 349, per 
Sir James Mansfield ; Doe dem. Thorn v. Phillips, 3 Bar. & Ad. 753.] 

1 The principle, on which Doe v. Richards was decided, was distinctly recognized in 
Wright v. Denn, 10 Wheat. 231 ; and the propriety of its application, to a devise in 
similar terms, seems fully sanctioned by the subsequent case of Doe v. Phillips, 3 Barn. 
& Adol. 753. 

The general doctrine is thus stated by Chancellor Kent : " Another general rule is, 
that if the testator creates a charge upon the devisee personally, in respect of the estate 
devised, as, if he devises lands to B, on condition of his paying such a legacy, the dev- 
isee takes the estate on that condition ; and he will take a fee by implication, though 
there be no words of limitation, on the principle that he might otherwise be a loser. 
But where the charge is upon the estate, and there are no words of limitation as a devise 
to A of his lands, after the debts and legacies are paid, the devisee takes only an estate 
for life. Jackson v. Bull, 1# Johns. Rep. 148 ; Jackson v. Martin, 18 Johns. 35 ; Spra- 
ker v. Van Alstyne, 18 Wendell, 200 ; Harris v. Ely, 7 Paige, 421 ; M'Lellan v. Turner, 
15 Maine Rep. 436 ; Gibson v. Horton, 5 Harr. & Johns. 177 ; Beall v. Holmes, 6 Harr. 
& Johns. 208 ; Lithgow v. Kavenagh, 9 Mass. Rep. 161 ; Story, J., 10 Wheat. Rep. 231 ; 
3 Mason's Rep. 209-212 ; Denn v. Mellor, 5 Term R. 558 ; Goodtitle v. Maddern , 



Title XXXVIII. Devise. Ch. XL s. 69—70. 285 

69. A person devised in these words, — " I give and bequeath 
my freehold house with the appurtenances, &c., and all furniture 
thereto belonging, to B. G., whom I make executrix of this- my 
last will ; she paying all my just debts and funeral expenses, 
and legacies before mentioned, twelve months after my death. 
I likewise leave to the said E. G. all the rest and residue of my 
personal estate." (a) 

The Judge before whom the cause was tried being of opinion 
that the devisee took a fee, by reason of the words, " she paying 
all my debts," nonsuited the plaintiff. 

On a motion to set aside that nonsuit, Lord Kenyon said :— 
" I am clearly of opinion, that the direction given at the trial 
was perfectly right. In cases of this kind, the question has 
always been, whether the charge is to be paid only out of the 
rents and profits of the estate, or whether it is to be paid by the 
devisee at all events ; in the former case, the devisee only takes 
an estate for life, but in the latter he takes a fee, otherwise he 
might be a loser by the devise. Here the devisee is 
bound to *pay the debts and legaqj.es at all events; and *224 
the charge is thrown on her in respect of the real estate. 
The personalty is given to her by the next clause in the will." 

70. A person devised in these words, — " All the rest I have in 
the world, both houses, lands, goods and chattels, stock in trade, 
and all other things that belong or may belong to me, I give to 
my present wife, J. P., my executrix; so that she shall sell my 
stock in trade and household goods, and if these will not pay the 
debts, she shall sell next the house of fee in Penzance, and not 
Prospednick ; so that my executrix shall pay in good time all 
lawful debts." (b) 

Lord Ellenborough said, it was clear that the executrix and 
residuary legatee took a fee in the premises in question ; for she 
was charged with payment of all the debts, and she had the 

(a) Doe v. Holmes, 8 Term E. 1. (b) Goodtitle v. Maddern, 4 East, 496. 



4 Bast's Eep. 496 ; Preston on Estates, Vol. II. 207, 217-220, 228, 235, 243-250." See 
6 Kent, Comm. 540 ; 2 Pow. on Dev. 379-395, by Jarman ; 2 Jarm. on Wills, 171-175, 
by Perkins, and cases there cited ; Burlingham v. Belding, 21 Wend. 463 ; Dewitt v. 
Eldred, 4 W. & S. 414 ; .Franklin u. Harter, 7 Blackf. 488 ; [Olrastead v. Olmstead, 
4 Comst. 56 ; Harden v. Hays, 9 Barr. 151 ; Coane v. Parmentier, 10 Barr. 72.] 



286 Title XXXVIII. Devise. Ch. XL s. 70—75. 

land devised to her, as well as the personal estate, all in the same 
clause, in order to enable her to satisfy that charge ; and she 
could not have less than a fee in it, because she was empowered 
to sell it, which she could not do without having the fee : as to 
what was said in the will, relative to the sale of the stock in 
trade, and household goods, in the first instance, for payment of 
debts, and if those were not sufficient, then the house in Pen- 
zance, that was merely directory to her, to apply the personalty 
first for payment of debts, before the realty, which was no more 
than what the law directs in the common case. The distinction 
turned in all the cases on this, whether the debts, &c. were 
merely a charge on the estate devised, or a charge on the devisee 
himself, in respect of such estate in his hands, (a) 
Judgment, that the devisee took an estate in fee. 

71. The cases, where the payment of debts and legacies is 
charged on the estate devised, and not on the devise, will be 
stated in the thirteenth chapter. 

72. Where lands are devised, with a direction that the devisee 
shall make a perpetual annual payment thereout, the devisee, will 
take an estate in fee simple ; for otherwise he could not fulfil the 
intention of the testator. 

73. A devised lands to C, a younger son, and willed that C 
should pay annually to his eldest son B, and his heirs, £3. Re- 
solved, that this was an estate in fee. (b) 

74. Lands were devised to I. and S., and they were to pay 
yearly to the merchant tailors of London, £6 10s. It was 

225 * resolved * that the devisees took a fee simple, by reason 
of the annual payment, without any regard to the great- 
ness or smallness of the sum : as the charge continued forever, 
the estate must continue so too ; for without the estate the charge 
could not be. (c) 

75. A person devised four coats to four boys of the parish of 
D. forever, and all his lands, tenements, and hereditaments, and 
all his personal estate to his wife, and her assigns. Adjudged, 
that the wife had a fee simple, because she took the lands with 
a perpetual charge, (d) 

(a) Doe ». Snelling, 6 East, 87. (6) Shailard v. Baker, Cro. Eliz. 714. 

(c) Webb v. Hearinp;, Cro. Jac. 415. 

(d) Smith v. Tyndall, 2 Salk. 685. 11 Mod. 102. 



Title XXXVIII. Devise. Ch. XI. s. 76—79. 287 

76. A devise upon condition of paying an annual sum to a third 
person, during the life of such third person, will give the devisee 
an estate in fee simple ; for otherwise the annuity might cease 
before the death of the person to whom it was given. 

77. A person devised lands to A. B. conditionally, that he 
should allow to his son Nicholas, meat, drink, &c. during his 
natural life. It was argued, that this was a fee simple ; for 
Nicholas had no manner of provision else ; it was plain the tes- 
tator designed the maintenance to be for Nicholas's life ; and not 
that when A. B. should die, Nicholas should starve ; therefore it 
was clear that A. B. must have a larger estate than for his own 
life, for otherwise, instead of having a benefit by the will, he 
would be prejudiced by it, if he should perform the testator's will. 
Adjudged that A. B. took an estate in fee simple, (a) 

78. A person devised two houses to his son Robert, upon con- 
dition that he should pay unto his two sisters £5 a year, with a 
clause of entry for non-payment, (b) 

The Court was of opinion, that a legacy or devise was always 
for the benefit of the party ; so that it was reasonable to make 
such construction of the will, that he might have no possibility 
of a loss ; for if there was a devise to one, upon condition that 
he paid a sum of money, if there was a possibility of a loss, 
though not very probable, it should be construed a fee ; and 
therefore the estate in this case being limited to Robert, and 
charged with payments to the sisters, during their lives, plainly 
proved the intent of the testator, that the devisee should have an 
estate in fee simple. Judgment was given accordingly. 

79. T. Ives devised a house to Clement Boreham for his life, 
paying thereout 405. a year to Robert Boreham, the tes- 
tator's * grandson; and gave two copyhold tenements to *226 
Sarah Boreham, she paying thereout 40s. a year to her 
sister Elizabeth, (c) 

The question was, what estate Sarah Boreham took. It was 
admitted, that if this was an annuity for life to Elizabeth, it 
would make it a devise in fee to Sarah ; and as this could not be 
effectuated without construing the inheritance to be given to 
Sarah, it raised a violent presumption that the testator intended 

(a) Lee t>. Stephens, 2 Show. 49. (J) Reed v. Hatton, 2 Mod. 26. 

(c) Baddeley v. Leppingvrell, 3 Burr. 1533. Wilmot, 223. 



288 Title XXXVIII. Devise. Ch. XL s. 79—81. 

her an estate of inheritance. The Court was of opinion, that 
Sarah took an estate in fee. 

80. A person, having a copyhold estate, after giving several 
legacies, gave to Mary Eamsey 20s. a year for her life, to be paid 
by his executors. He also gave to his kinsman T. Allin all his 
two yard-lands, with his house and homestead ; and all the resi- 
due and remainder of his goods, chattels, debts, mortgages, leases 
and personal estate, he gave to the said T. Allin, he paying his 
debts, legacies, and funeral expenses ; and made the said Allin 
executor. The question was, whether the devise to T. Allin was 
for life or in fee. (a) 

Lord Ch. J. De Grey said, he thought the real estate devised 
to Allin was in fee simple ; and that upon two grounds. I. By 
implication ; not indeed a necessary implication, strictly speaking, 
but so far necessary as it clearly arose from the reasonable 
construction of the will. The annuity was given to Mary 
Ramsey for her natural life, to be paid by his executor ; which 
being of an uncertain duration, must have an estate in fee to 
support it. II. All the several devises to Allin followed each 
other immediately, and must therefore be construed as one 
clause ; so that the payment of debts and legacies was charged 
on the real, as well as the personal estate. The other Judges 
concurred. 

• 81. A testator began thus, — " As touching all such temporal 
estate," &c, and then devised a house to his grandson, paying 
yearly and every year out of the said dwelling-house, the sum of 
15s. to his granddaughter, (b) 

Lord Kenyon. — " Though the general introductory words 
used in this will would have some effect in the construction of 
the subsequent devises, as was said by Lord Talbot in a case be- 
fore him | they would not of themselves carry a fee. But it has 
been very properly admitted, that the words, paying yearly and 
every year, are sufficient for that purpose. That annuity 
227* was intended *to continue during the granddaughter's 
life, though it is not so expressly mentioned ; and there- 
fore of necessity the grandson must take an estate in fee." 
Judgment was given accordingly, (c) 

(a) Goodright v. Allin, 2 Black. E. 1041. (b) Goodright v. Stacker, 5 Term E. 13. 

(c) Ibhetson v. Beckwith, ante, §22. 



Title XXXVIII. Devise. Ch. XI. s. 82—85. 289 

.82. The following case was sent out of Chancery, for the 
opinion of the Court of King's Bench. A person devised certain 
estates to her sister for life, and after her decease, she gave the 
same to E. Southouse, charged with the payment of an annuity 
of £20 to J. T. for and during the term of his natural life, (a) f 

The Court certified, that E. Southouse took an estate in fee. 
And Lord Kenyon observed, that the determination in Ansley v. 
Chapman, was founded on more limited grounds than those 
adopted in modern times, (b) 

83. Where lands are devised, with a direction that the devisee 
shall pay an annual sum out of the rents and profits of the lands, 
the devisee will only take an estate for life. The cases on this 
point will be stated in the thirteenth chapter. 

84. It has been resolved, in some modern cases, that a devise 
generally, with a limitation over, if the devisee dies under age, 
or without issue, will give the first devisee an estate in fee 
simple. 1 , 

85. A person made her will, beginning as follows : " As to my 
worldly affairs and estates, &c, I do dispose thereof in manner 
following." She then gave to her son J. H. a certain house ; 
and if the said J. H. should happen to die in his minority, or 
before he came to age, then she gave the said house to her three 
daughters, (c) 

Lord Mansfield said the devise over, if the son should die 
under twenty-one, to the three daughters, showed the intention 
of the testatrix to give a fee ; for if he lived to twenty-one, he 
might then dispose of it himself; if he died before he could not, 

(a) Andrew v. Southouse, 5 Term E. 292. [Eight v. Compton, 9 East, 267.] 
(i) Infra, c. 13. [See Jenkins v. Jenkins, Willes, 650.] 
• (c) Frogmorton v. Holyday, 3 Burr. 1618. 3 Ves. & Bea. 164. 



[t In this case the Judges seem to have considered the charge upon the devisee ; 
otherwise it would seem to have fallen within the principle of Doe v. Clarke, 2 Bos. 
& P., New. Rep. 343. See Roe v. Daw, 3 M. & Sel. 525. Bayley, J., seems to have 
taken this view of the case of Andrew v. Southouse.] 

1 If the devisee has the absolute right to dispose of the property at his pleasure, 
the devise over is inoperative. But where a life estate only is clearly given to the 
first devisee, with an express power, in a certain event, or for a, certain purpose, to 
dispose of the property, the life estate is not, in that case, enlarged into a fee, and 
the devise over is good. Ramsdell v. Ramsdell, 8 Shepl. 288 ; and see Jackson v. 
Robins, 16 Johns. 537; Guthrie v. Guthrie, 1 Call, 7 ; Waring v. Middleton, 3 Desaus. 
249 ; [McLean v. McDonald, 2 Barb. Sup. Ct. 534.] 

vol. in. 25 



290 Title XXXVIII. Devise. Ch. XL s. 85—89. 

and then she disposed of it. If the son was barely to take an 
estate for life, the time of his death must be immaterial to the 
devise over ; but limiting it over only upon the contingency of 
his dying in his minority, showed that she intended to give him 

an absolute estate in fee, which he might dispose of if he 
228 * came * of age ; and unless he lived to be of age, when he 

might dispose of it, she meant it should go to her daugh- 
ters. 

86. A person devised to the two children of his brother, when 
they attained the age of twenty-one years ; but if either of them 
should die under the said age of twenty-one years, then the sur- 
vivor should be heir to the other, (a) 

It was resolved, on the authority of the preceding case, that 
the devisees took estates in fee. 

87. Upon a case, sent from the Eolls, for the opinion of the 
Court of King's Bench, the facts were : — a person devised to 
certain of her grandchildren, as tenants in common ; but in case 
of the death of either of them, under age, and without leaving 
any issue, the share of the person so dying to go to the survivor. 
It was certified, that the grandchildren took a fee. (b) 

88. Where lands are devised to trustees, for the purpose of 
performing any trusts which require the absolute property of them, 
an estate in fee simple will pass to the trustees, without any 
words of limitation ; for there is no difference between a devise 
to a person in fee simple, and a devise to a person upon trusts 
which require an estate in fee simple, (c) 1 

89. A person gave all and singular his freehold, leasehold, copy- 
hold, and also his personal estate, of what kind soever, to trus- 
tees and their executors, administrators, and assigns, in trust to^ 
and for several uses, to pay several annuities, sums, and legacies, 
by and out of the produce of the personal estate ; if that should 
happen to be deficient, then to pay the same by and out of the 
rents, issues, and profits arising by the real estate, (d) 

One of the questions in this case was, whether the trustees 
took an estate in fee, under the devise. 

(a) Doe v. Cundall, 9 East, 400. Doe v. Coleman. 6 Price, 179. The cases there cited. 
[Also Doe v. Nicholls, 1 B. & Cres. 336.] (b) Toovey r. Bassett, 10 East, 460. 

(c) Doe v. Willan, 2 B. & Aid. 84. (d) Gibson v. Moutfort, 1 Vez. 485. 

1 See 4 Kent, Comm. 540 ; Ante, tit. 12, ch. 1, § 14, note ; Doeu. Hewland, 8 Cowen, 
277. 



Title XXXVIII. Devise. Ch. XL s. 89—91. 291 

Lord Hardwicke was of opinion, that the inheritance passed 
to the trustees, and said it had often been determined, that in a 
devise to trustees, it was not necessary the word " heirs " should 
be inserted, to carry the fjse at law ; for if the purposes of the 
trust could not be satisfied without having a fee, courts of law 
would so construe it ; as in Shaw v. Weigh, and several other 
cases. Here were purposes to be answered which, by possibility, 
and that was sufficient, could not be answered without the trus- 
tees having a fee, viz., the paying of several annuities and large 
pecuniary legacies, if the personal estate was deficient, which 
would probably be the case ; then how was the rest to be 
raised, barely * by the rents and profits ? It must be so, if * 229 
it was a chattel interest, for then it could not be taken out 
of the estate by anticipation ; but that could not be in this case ; 
for if the pecuniary legacies were not paid out of the personal, 
the real must be sold to satisfy them ; for several of them were 
to be paid within a year after the testator's death, and could not 
therefore be paid by annual perception. This, then, was a pur- 
pose which it was impossible to serve, unless the trustees had 
the inheritance ; for if they were to sell a fee, they must have a 
fee. (a) 

90. G. B. devised several sums of £3 a year, some for life, and 
some in fee ; and added, that these legacies were to be faithfully 
paid by his trustee J. C. every year. He also left to his trustee 
and executor £5 to build a tomb for him, he and his heirs always 
to see that it was kept in order, and appointed the said J. C. his 
sole executor and trustee. The Court was of opinion, that all 
the estate of the testator passed to the trustee in fee ; because 
the intention was clear, that he meant to devise his real estate in 
trust ; and there were trusts to be executed, which the trustee 
could not effectuate, without having an estate in fee devised to 
him ; for there were annuities in fee charged on the real estate, 
and the estate must be coextensive with the charges, (b) 
■ 91. In commenting on the case of Vick v. Edwards, Mr. 
Fearne observes, that the first words alone would, from the na- 
ture of the trust, have carried the fee to the trustees. The latter 
words did not give it from them ; which indeed would have been 

(a) Fitzg. E. 7. [Trent v. Hanning, 7 East, 97.] 

(6) Oakes v. Cooke, 3 Burr. 1684. [Doe v. Woodhouse, 4 T. R. 89. Anthony ». Eees, 
2 Crom. & Jerv. 75.] Doe v. Gillard, 5 Barn. & Aid. 785. 



292 Title XXXVIII. Devise. Ch. XL s. 91—97. 

an express negative upon the constructive operation of the first. 
But their effect was included in that of a devise to the trustees 
and their heirs, inasmuch as they expressly direct the fee to the 
same person as such a complete limitation would ultimately 
carry it to, viz., the survivor of the trustees, (a) 

92. In the case of chattels real, that is, terms for years, a 
general gift of them will pass all the estate and interest of the 
testator, without any additional words. 

93. The termor of a messuage for forty years, devised the 
messuage by his will, without any words of limitation. It was 
resolved, that the entire term passed, for the devisee could not 
have any estate in the house, at will, or for teVm of life, or 
for the term of any years, or a year, therefore the whole term 
passed, (b) 

94. A disposition of a term for years to a person and the heirs 

of his body, is a disposal of the entire interest in the 
230 * term ; for * a term cannot be entailed. But a devise over 

of a term, after a prior disposition of it to a person for life, 
is good by way of executory devise ; of which an account will 
be given in a subsequent chapter, (c) 

95. It is said by Lord Parker, that a devise of a term to one 
for a day, or an hour, is a devise of the whole term, if the limita- 
tion over is void, and it appear at the same time that the whole 
is intended to be disposed of from the executors. But if such 
an intention does not appear, then it has been held that a limita- 
tion of a term to one life, does not vest the whole so absolutely 
in him, as to be at his disposal ; but leaves a possibility, viz., 
upon the death of the devisee within the term, of reverter in the 
executors of the testator, (d) 

96. A being possessed of a term for ninety-nine years, devised 
it to B for life, remainder to C for life, and so on to five others, 
successively for life. It was resolved, that after the death of the 
seven persons to whom the term was devised for life, it should 
revert to the executor of the testator, (e) 

97. [Where, by deed or will, the trust of a term in gross is to 
pay the rents and profits to the cestui que trust generally, (i. e. 



(a) Tit. 16, c. 8. Fearne, Rem. 8th edit. 357. (S) Fenton v. Foster, 3 Dyer, 307, b. 

(c) Tit. 8, c. 2. (d) 1 P. Wms. 666. Fearne's Ex. Dev. 487, ed. 8. 

(e) Eyres v. Faulkland, 1 Salk. 231. 



Title XXXVIII. Devise. C/i. XL s. 97. 293 

without words of limitation or restriction,) the cestui que trust 
will be 'entitled to the absolute interest in such term in gross. 
Yet it is otherwise, where a term is by such grant or devise 
carved out of the inheritance ; in which case the cestui que 
trust will only be entitled to a life interest, and subject thereto, 
the term will attend in trust for the owner of the inherit- 
ance.] (a) 

(o) Bolt v. Mitchelson, Belt's Supp. to Vez. 238. 



25* 



294 



CHAP. XII. 

CONSTRUCTION. — WHAT WORDS CREATE AN ESTATE TAIL. 1 
Sect. 1. No Technical Words neces- Sect. 27. The words Issue, Children, 



sary. 
7. The word Heirs qualified by 
subsequent words. 
20. Or by a Remainder over to a 
collateral Heir. 



32. An Estate Tail may arise by 
Implication. 

46. A Devise for Life may be en- 
larged into an Estate Tail. 



Section 1. As lands may be devised in fee simple, without 
any of those technical words which are required in deeds, so 
may they be devised in tail ; for any words that indicate the tes- 
tator's intent to restrain the descent of the estate given to the lineal 
descendants of the devisee, will only pass an estate tail. Thus a 
devise to a person, et semini suo, or to a man and his wife, et hceredi 
de corpore, et uni hceredi tantum gives an estate tail, (a) 

2. It was agreed by the Judges of the Court of K. B. in 36 
Eliz., that a devise to one and the heir of his body, was an estate 
tail, and should go to all the heirs of his body ; for heir was 
nomen collectivism, and one can have but one heir at. one time ; 
and this should go from heir to heir, (b) 2 

3. It has been stated, that a limitation in a deed, to a person and 
his heirs male, creates an estate in fee simple ; but in a will, those 
words will create an estate tail, (c) 

4. A person devised to his eldest son, all that his farm called 

(a) 1 Inst. 9 b. 1 Vent. 228. (And see Tit. 2, oh. 1, § 22.) (6) Cro. Eliz. 314. 

(c) Tit. 32, c. 21. 

1 On the subject of this chapter, see the learned Essay of Mr. Hayes, on the Disposi- 
tion of Real Estate. 

2 A devise to one " and his oldest male heir, forever," gives an estate tail. Cuffee v. Milk, 
10 Met. 366 ; and see Hall v. Vandegrift, 3 Binn. 374 ; Hamilton v. Hempstead, 2 Day, 
332. But a devise to one " and his heirs lawfully begotten, forever," without a limitation 
over, was held to give a fee simple. Paddison v. Oldham, 1 Har. & M'Hen. 336. [A 
devise by a father of certain real estate to his " son John, and the heirs lawfully begot- 
ten of his body, and their heirs and assigns," gives an estate tail to John, and the words 
" their heirs and assigns," do not enlarge the devise to a fee simple, either to him or the 
heirs of his body. Buxton v. Uxbridge, 10 Met. 87 ; Wight v. Thayer, 1 Gray, 284. 



Title XXXVIII. Devise. Ch. XII. s. 4—7. 295 

D., to him and his heirs males for ever. Resolved, that the eld- 
est son took an estate in tail male ; for the law would supply the 
words of his body, (a) 

5. Where an estate is expressly devised to a person and the 
heirs of his body, no charge on such estate will enlarge it to an 
estate in fee simple, (b) 

6. A person devised a messuage and lands to her eldest daugh- 
ter Alice, and the heirs of her body lawfully to be begot- 
ten * forever; remainder to her other daughters in the *232 
same manner, charged and chargeable with the full sum of 

nine score pounds, to be levied and raised out of the first clear 
annual profits of the said messuages, &c. And that her executors 
should stand possessed of the said messuage for so long a time 
as until they should raise the said sum ; and to and for the 
benefit of her daughters A. M. and I. (to whom she had given 
the money) until the same should be paid by her eldest daugh- 
ter Alice or her heirs, and from and after the raising thereof by 
Alice, or her heirs, it was her will that she and her heirs should 
enjoy the said messuages, &c. forever, (c) 

It was resolved, that as the words of the devise created an 
estate tail ; the charge on the lands, and the subsequent use of 
the words, " heirs of Alice," should be construed to refer to the 
special designation of heirs to whom the estate was devised at 
the beginning of the will ; and therefore that Alice took only an 
estate tail. And Lord Mansfield observed, that there never was 
an instance of an estate in fee raised by implication from the 
circumstance of a charge being made by the devisor, where an 
express estate for life, or in tail, was given ; and here it was an 
estate tail with several remainders over. 1 (d) 

7. Although a devise to a person and his heirs gives him an 
estate in fee simple, yet if the word " heirs " be qualified by any 
subsequent words, which show the intention of the testator to re- 

(a) Baker v. Wall, 1 Ld. Kaym. 185. (Derm v. Fogg, 2 Penn. 819. Trevor v. Trevor, 
1 H. L. Ca. 239.) 
(4) (Willis v. Bucher, 2 Binn. 456, 464. Gause v. Wiley, 4 S. & E. 509.) 

(c) Doe v. Fyldes, Cowp. 833. (Lithgow v. Kavanagh, 9 Mass. 161.) 

(d) Denn v. Shenton infra, § 15. Denn v. Slater, infra, § 45. 



1 A devise "to A and her heirs lawfully begotten, and in case she dies without 
heirs," remainder over, gives A an estate tail. Pratt v. Flamer, 5 Har. & J. 10. 



296 Title XXXVIII. Devise. Ch. XII. s. 7—10. 

strain it to the heirs of the body of the devisee ; the devise will, 
in that case, only create an estate tail? 

8. There is a case in Moore, in which it was held, that a devise 
to an unborn person el hceredibus suis legitime procreatis, crea- 
ted an estate tail. And in a modern case sent out of Chancery, 
where there wasa devise to a person and his heirs, lawfully be- 
gotten, forever, the Court of C. P. certified, that the devisee 
took an estate tail ; though it was urged that the words lawfully 
begotten were surplusage, and equally applicable to collateral as 
to lineal heirs. It is however observable, that the testator had 
in another part of his will devised to a person and to his heirs 
forever ; so that the variation of the phrase imported a variation 
of intent, which may have been the ground of the certificate, (a) 

9. W. B. devised all his lands to John his son, and his heirs 5 

and if he died without issue, he devised his lands in R. 
233 * * to M. his nephew in fee ; and his lands in H. to H. his 

nephew in fee. (b) 
It was resolved, that the first limitation to John was the same 
as if it had been to him and the heirs of his body, and no fee. 

10. W. G. devised lands to his wife for life, and after her 
death, to John his eldest son, and to his heirs ; upon condition 
that he, as soon as the land should come to him in possession, 
should grant to Stephen his second son, and his heirs, an annual 
xent of ,£4, out of the said tenements ; and that if the said John 
died without heirs of his body, the land should remain to the said 
Stephen and the heirs of his body. The first question was, 

(a) Church v. Wyat, Moo. 637. Nanfan v. Legh, 7 Taunt. 85. (Hall v. Vandergrift, 
■3 Binn. 347. Berry v. Berry, 1 H. & J. 417. Thomas v. Benton, 4 Desaus. 17.) 

(6) Brown v. Jerves, Cro. Jac. 290. Doe v. Ellis, 9 East, 382. (Hawley v. Northampton, 
8 Mass. 41.) 



1 See Dott v. Cunnington, 1 Bay, 453 ; Duer v. Boyd, 1 S. & E. 203 ; Tidball v. 
Lupton, 1 Rand. 194; Gause v. Wiley, 4 S. &. E. 509 ; Sleigh v. Stridor, 5 Call, 439 ; 
Bells v. Gillespie, 5 Band. 273 ; Sharp v. Thompson, 1 Whart. 139 ; In re James, 1 
Dall. 47; Dem. v. Cox, 4 Halst. 10; Caskey v. Brewer, 17 S. & E. 441; Sewell v. 
Howard, 1 Har. & M'Hen. 45 ; Moekbee v. Clagett, 2 Har. & M'Hen. 1 ; Shanks v. 
Blackiston, 4 Har. & M'Hen. 481. [Fisk v. Keene, 35 Maine, (5 Eed.) 349 ; Wight v. 
Thayer, 1 Gray, 284 ; Perry v. Briggs, 12 Met. 17 ; Canedy v. Haskins, 13 Met. 389 ; 
Weld v. Williams, lb. 486; Brown v. Lyon, 2 Selden, (N. Y.) 419 ; Morehouse v. 
Cotheal, 2 New Jer. 430; Lapsley v. Lapsley, 9 Barr, 130; Deboe v. Lowen, 8 B. 
Mon. 616; Chew u. Chew, 1 Md. 163; Nowlin v. Winifree, 8 Gratt. 346 ; Eraser v. 
Chene, 2 Mich. (Gibbs,) 8i.J 



Title XXXVIII. Devise. Gh. XII. s. 10—12. 297 

whether John had an estate in fee by the devise ; which being to 
him and his heirs, upon condition that he should grant a rent to 
Stephen and his heirs, it was said the intent was shown that he 
should have a fee, for otherwise he could not legally grant such a 
rent, to have continuance after his death, (a) 

It was, however, resolved to be an estate tail ; for, being limited, 
that if he died without issue, then it should be to Stephen and 
the heirs of his body, that showed what heirs of John were in- 
tended, namely, heirs of his body. But yet, by the limitation of 
the will, he was to make a grant of the rent, which being by 
appointment of the donor, it was not contra formam donationis, 
but stood with the gift, and should bind the issue in tail. 

11. W. Hydes, having two sons, Thomas and Francis, devised 
all his lands to his wife for life, and after her decease, then he 
devised his lands in B. to Thomas, his son, and his heirs forever, 
and his lands in E. L. to Francis, his son, and his heirs forever ; 
adding the following words, "Item, I will that the survivor of 
them shall be heir to the other, if either of them die without 
issue. (6) 

It was resolved, that this was an estate tail; and that although 
the first part of the will gave a fee, the second part corrected it, 
and made it but an estate tail. 

12. A person gave and devised all his freehold messuage, &c, 
to his son P. B., and his heirs forever, on condition that he should 
pay his son W. B. .£30 ; and devised estates to his other sons in 
the same manner. Then followed this clause: "Item, my will 
and mind is, that in case any of my said children unto whom I 
have bequeathed any of my real estates, shall die without 

* issue, then I give the estate of him or them so dying, *234 
unto his or their right heirs forever." 

Lord Ch. J. "Willes delivered the opinion of the Court, and 
said the question was, whether P. B., the devisee, took an estate 
in fee or in tail ; and this was divided into two questions ; 
I. Whether he would have had an estate tail in case the re- 
mainder had been devised over to a stranger. II. Whether 
devising it over to the right heirs of the person so dying with- 
out issue, made any difference. 

(a) Duttoa v. Engram, Cro. Jao. 427. 

(6) Chadook v, Cowley, Cro. Jac. 695. (Williamson v. Daniel, 12 Wheat. 568. Haines v. 
Witmer, 2 Yeates, 400. Shanks v. Blaokiston, 4 H. & M'Hen. 481.) 



298 Title XXXVIII. Devise. Ch. XII. s. 12—13. 

As for the first question, it could not be doubted, after so 
many solemn determinations, that if a man devised an estate 
to A and his heirs, and afterwards in his will gave his estate to 
another, in case A died without issue, the subsequent words 
reduced A's estate only to an estate tail ; and restrained the 
general word heirs to signify only heirs of the body ; and this 
was founded upon these known rules, that the intention of the 
testator shall always take place in the construction of wills, so 
far as it can be collected from the will itself, if it be not con- 
trary to the rules of law ; and that the priority or posteriority 
of words in a will was not at all regarded, but that the whole 
will must be taken together, to find out the intent of the 
testator, (a) 

II. But this distinction was relied on, that though it would 
have this construction in case the remainder had been devised 
over to a stranger, it would be otherwise in the present case, 
because the remainder was devised over to the heirs of the per- 
son so dying without issue. This distinction, though it seemed 
at first to be of some weight, when considered, made no differ- 
ence, either in reason or in law. Even in grants, where words 
were .construed much stricter than in cases of wills, if there were 
words that created an estate tail, the grantee would have an 
estate tail, though the next remainder was limited to his right 
heirs ; and nothing was more common in settlements than to 
limit an estate to a man and the heirs of his body, remainder 
to his right heirs ; and for this plain reason, to prevent his dis- 
inheriting his issue, except by some solemn act done in his life- 
time. 

The Court was unanimously of opinion, that the devisee took 
an estate tail. (6) 

13. It is observed by Mr. Durnford, in a note to this case, that 
by the words, die without issue, the devisor must have 
235* meant * dying without heirs of the body, or without heirs 
generally. But to suppose that he used those words in 
the latter sense, would be to suppose that he intended to devise 
the lands to his son P. B., and his heirs forever, and if he die 
without such heirs, then to the same heirs. There seemed, there- 
to) [Romilly v. James, 6 Taunt. 274-275.] 
(6) Brice v. Smith, Willes, 2. 1 Com. R. 538. (Hurlbert v. Emerson, 16 Mass. 241.) 



Title XXXVIII. Devise. Ch. XII. s. 13—3,5. 299 

fore less doubt in such a case respecting the devisor's intention, 
than in the ordinary case of a limitation over to a stranger, after 
a dying without issue by the first taker.f 

14. J. Leslie devised lands to the use of his eldest son John, 
and his heirs forever ; and failing issue of his said son John, 
then to the use of his second son James, and his heirs forever ; 
and failing issue of that son, then to the use of his third son 
George, and his heirs forever ; and failing issue of that son, then 
to the use of every other son that he should have, and their heirs 
forever ; and failing his issue male, then to the use of his issue 
female and their heirs forever. It was determined by the House 
of Lords, on an appeal from the Court of Exchequer in Ireland, 
that according to the intention of the testator, his sons took suc- 
cessively estates in tail male ; and that upon the death of the 
eldest son, leaving only a daughter, the second son took in the 
order of succession, (a) 

15. A will was as follows : " I give to my grandson Samuel 
all my meadow, &c, to hold unto the said Samuel and the heirs 
of his body lawfully begotten, and their heirs forever ; charge- 
able with the payment of £8 a year to my niece, &c. But in 
case the said Samuel shall die without leaving issue of his body-,., 
then I give the said meadow, &c. unto my nephew W. G." The 
question was, whether Samuel took an estate in fee, or an estate 
tail. It was contended that the testator meant the issue of 
Samuel should take an estate in fee ; and that the devise over 
was in the event of Samuel's dying without issue living at the 
time of his death, by which means it would be an executory 
devise, (b) 

Lord Mansfield said, the question was, whether the grandson 
took an estate tail, or an estate in fee. That the devise was to 
Samuel and the heirs of his body, and their heirs forever ; but 
the words, their heirs forever, were qualified by the . subsequent 
words, in case he shall die without leaving issue, which 
clearly * showed it to be an estate tail ; and then the tes- * 236. 

(a) Fitzgerald v. Leslie, 3 Bro. Pari. Ca. 154. Preston r. Funnell, Willes, R. 164. 
(S) Denn u. Shenton, Cowp, 410. (Buxton v. Uxbridge, 10 Met. 87. Lithgow v. Kaven- 
agh, 9 Mass. 166.) Doe v. Wetton, infra, c. 17, § 8. 



ft But the construction is the same in either case, whether the limitation over bo to. 
a stranger, or to one who might be the heir.— Doe v. Ellis, 9 East, 382. 



300 Title XXXVIII. Devise. Ch. XII. s. 15—17. 

tator gave it over to the lessor of the plaintiff. It was too 
clear to admit of a doubt. Judgment, that Samuel took an 
estate tail. 

16. I. Beech devised to his wife for life, and after her decease 
to be equally divided between his four children, H., I., E., 
and S., and to each of them and their heirs forever, share and 
share alike ; and in case they should be minded and agree 
among themselves to sell the said estate, then every one of his 
said children should, have their equal shares of moneys, from 
thence arising ; but if they consented and agreed to keep the 
estate whole together, then and in such case all the rents, 
issues, and profits thereof, from time to time, as they should 
become due and payable, should be equally paid and divided 
between his four children, and to the several and respective 
heirs of them, on their bodies lawfully begotten, share and share 
alike, (a) 

The Court said, that the children of I. Beech took only estates 
tail in the respective fourths ; for though it was given to them 
and their heirs, and they had also a power of selling the estate, 
by the former part of the devise ; yet the subsequent words, to the 
several and respective heirs of them on their bodies lawfully 
begotten, restrained the operation of the former words, and 
reduced the estate devised to an estate tail. 

17. W. F. by will, after confirming his settlement, by which 
one part of the estate was limited to his wife for life, devised 
the rest of the premises to his daughter and only child Mary, on 
her attaining twenty-one, and to her heirs : and as to that part 
which was settled on his wife he devised the same to his said 
daughter, after the death of his widow. In case the widow 
should die before the daughter attained twenty-one, then he 
willed that both parts of the estate should go immediately to his 
daughter, and her heirs for ever; but he willed that his wife 
should hold and enjoy both parts until his daughter should attain 
the age of twenty-one ; and in case his daughter should die with- 
out issue, then he empowered her to dispose of the whole by 
will, or any other instrument in writing, and for want of such 
issue and direction, &c, then that the same should descend.and 
go to his own right heirs, (b) 

(a) Roe v. Avis, 4 Terra E. 605. {bj Doe „. RiverSi 7 Term B 276 



Title XXXVIII. Devise. Ch. XII. s. 17—21. 301 

The Court was of opinion, that the daughter took only an 
estate tail. 

*18. A person devised to her son Richard, and her *237 
daughter Elizabeth, and their heirs forever. Provided 
that if her said son and daughter should both have issue, then 
both their dividends aforesaid were to go to the issue of their 
own bodies: but if but one of them should have issue, then the 
premises should go to that issue, whether it were the child of her 
son or daughter aforesaid ; but if they both died without issue 
of their bodies, then immediately to the right heir at law, and his 
heirs forever, (a) 

The Court resolved that the devisees took an estate tail. 

19. There are several cases, in which words, introducing re- 
•mainders over, after a limitation to heirs, do not abridge or qualify 
the extent of the word " heirs ; " of which an account has been 
given in a former title, (b) 

20. In consequence of the principle, that there can be no re- 
mainder limited after an estate in fee simple ; where there is a 
devise to a person and his heirs, and if he dies without heirs, 
remainder to a stranger, the remainder is void. But where lands 
are devised to a person and his heirs, with a remainder to a col- 
lateral heir of the first devisee ; the word " heirs" will be con- 
strued to mean* 'heirs of the body, and the first devisee will take 
only an estate tail ; because the devise over to the collateral heir 
plainly denotes, that the testator only meant to give the lands to 
the lineal descendants of the first devisee ; for the first devisee 
could not die without heirs, as long as the collateral heir, or any 
of his lineal descendants were existing, (c) 

21. Thus, where a person devised, his houses in London to 
Francis his son, after the death of his wife; and if his three- 
daughters or either of them should overlive their mother, and 
Francis their brother and his' heirs, then they to enjoy the same 
houses for term of their lives. The principal 1 question was, 
whether Francis the son had a fee, or a fee tail, by the will, in 
regard the limitation was, if his sisters survived him and his 
•heirs, (d) 

{a) Doe v. Wiohelo, 8 Term K. 211. [Et vide Tenny v. Agar, 12 East, 253.] Pierson v. 
Vickers, 5 East, 548. W Tit. 16, c. 1. 

(c) Fearne'sEx. Dev. 466, ed. 8. Att.-Gen. v. Gill, 2 P. Wms. 369. [Does. Bluok, 6. 
Taunt. 484.] M Webb v. Hearing, Cro. Jao. 415. 

vol. in. 26 



302 Title XXXVIII. Devise. Ch. XII. s. 21—23. 

The Court resolved, he had but a fee tail ; for by " heirs" in 
this place, was intended " heirs of his body ; " because the limita- 
tion being to his sisters, it was necessarily to be intended that it 
was, if he should die without issue of his body, for they were his 
heirs collateral. And therefore there was a difference, where a 

devise was to one and his heirs, and if he died without 
238 * heirs, * that it should remain over ; it was void, as 19 Hen. 

VIII. pi. 9 ; yet when a devise was to one and his heirs, 
and if he died without heir, it should be to his next brother, there 
was an apparent intention what heirs he intended ; and the in- 
tention being collected from the will, the law would adjudge 
accordingly. 

22. A testator devised lands to his wife for life, remainder to 
Henry his son for life, remainder to his son George and his heirs 
forever, and if he died without heirs, then to his two daughters, 
The question was, whether George took a fee simple, or only 
an estate tail. And the case of Webb v. Hearing was cited, to 
prove that where a devise is to one and his heirs, remainder over 
to another, who is, or may be the devisee's heir at law, such limi- 
tation shall be good ; and the first limitation construed an entail, 
and not a fee, in order to let in the remainder-man ; but where 
the second limitation is to a stranger, it is merely void, and the 
first limitation is a fee simple, (a) 

Lord Talbot said George took an estate tail. The difference 
which had been taken was right ; and the reason of it was, that 
in the latter. case, there was no intent appearing, to make these 
words carry any other sense than what they imported at law ; 
but in the former, it was impossible that the devisee should die 
without an heir, while the remainder-man or his issue continued ; 
and therefore the generality of .the word "heirs," should be re- 
strained to heirs of the body ; since the testator could not but 
know, that the devisee could not die without an heir, while the 
remainder-man or any of his issue continued, (b) 

23. The rule is the same where the remainder is limited to the 
heirs of the testator himself, if such heirs must also be heirs to the 
first devisee, (c) 

(a) Tyte v. Willis, Forr. R. 1. 

(6) Pickering v. Towers', 1 Eden, 142. Goodright v. Goodridge, Willes, R. 369. 

(c) Fearne's Ex. Dev. 467, ed. 8. 



Title XXXVIII. Devise. Ch. XII. s. 24—27. 303 

24. A person, having issue three sons, John, Francis, and 
William, devised his lands to Francis and his heirs ; and for 
default of the heirs of Francis, to the heirs of the devisor, (a) 

Lord Holt said, that although the devise to the heirs of the 
devisor, passed no estate to the eldest son, who took the re- 
version by descent, and not the remainder by purchase, yet it 
was sufficient to show the intent of the devisor, that the words 
of the devise, " to Francis and his heirs, and for want of such 
heirs," meant heirs of his body. And as the devisor said that 
his own right heirs should take after the death of Francis 
without * heirs, although the devisor's heir took nothing * 239 
by this devise, for he took by descent, yet it appeared 
that the testator intended that when Francis was dead with- 
out issue, the eldest son should take ; and the word " heirs " 
could not have any other construction but "issue," because 
he could not die without an heir as long as the testator had 
an heir, (b) 

25. T. G. devised an estate to his grandson, for and during 
his natural life ; and after his decease, to his right and lawful 
heirs and assigns for ever ; and for want of such lawful heirs, 
he gave the same to another grandson, his heirs and assigns for- 
ever, (c) 

The Court of K. B. certified to the Court of Chancery, that 
the grandson took an estate tail. 

26. But where a devise was to a person and his heirs, and if 
he died without heirs, remainder to his half-brother ; the devise 
was held by Lord Hardwicke to pass a fee ; this being in fact a 
devise over to a stranger, as the law considers him ; because he 
could not inherit from his brother, (d) 

27. Where lands are devised to A and his issue, or to A " and 
his children," A having no children at the time, he will take an 
estate tail ; because it is clearly the intention of the testator not 
to give A an estate for life only, but that his children should be 
benefited by the devise ; and they cannot take as immediate 
devisees, not being in existence at the death of the testator; 

(a) Nottingham v. Jennings, Com. K. 82. 1 P. Wms. 23. 

(b) Ante, c. 8. 

(c) Morgan v. Griffiths, Cowp. 234. Lewis v. Waters, 6 East, 336. 

(d) Tilbury v. Barbutt, 3 Atk. 617. S. C. 1 Vez. 89. 



304 Title XXXVIlL Devise. Ch. XII. s. 27—29. 

nor can they take by way of remainder, T;he devise being im- 
mediate, (a) 1 

28. Mr. Viner, the author of the Abridgment, devised certain 
premises to Dr. Clifton, and the " issue " of his body lawfully 
begotten, living at his death, and for want of such issue, to the 
University of Oxford, (b) 2 

Lord Keeper Henley. — " This is the plainest case I ever saw 
in my life. The issue cannot take by present devise, as joint 
tenants with the defendant. They are not to take by remainder, 
but by descent, all the posterity are intended to take ; it cannot 
therefore be a contingent remainder, but it is clearly an estate 
tail." 

29. E. Wharton devised all the rest and residue of his estate, 
as well real as personal, to his nephew A. Wharton, and his sons 
in tail male, and for want of such issue in tail male, to his 

brother J. Wharton and his sons in tail male, and on 
240 * failure of * such issue, to his own right heirs. Neither A. 

nor J. Wharton had any issue at the time of making the . 
said will, or at the death of the testator. A. Wharton died 
without issue, (c) 

This case was sent from the Court of Chancery, for the opin- 

(a) Wild's case, 6 Rep. 16. 1 Vent. 229. Frank v. Stovin, 3 East, 648. [Doe v. Davies, 
4 B. & Adol. 43.] (J) Un. of Oxford v. Clifton, 1 Eden, 473. 

(c) Wharton ». Gresham, 2 Black, E. 1088. 3 Term E. 373. 



1 A devise was in these words ; — " I give to my daughter M. and her children one 
•half of my house and land, &c. Item, I give to my daughter J. and her children the 
•other half of the aforesaid house, &c. But if either of my aforesaid daughters 

should die and leave no children, my will »is, that my surviving daughters and their 
children should enjoy their deceased sister's part." At the time of the devise, M. was 
unmarried, and J. was married, but had no child. It was held to be a devise in fee 
tail. Nightingale v. Burrell, 15 Pick. 104. And see Parkman v. Bowdoin, 1 Sumn. 
359 ; Wheatland v. Dodge, 10 Met. 502 ; Clark v. Baker, 3 S. & B. 470. [The word 
"children" held to be used synonymously with "issue." Voller v. Carter, 29 Eng. 
Law & Eq. 267.] . 

2 The word " issue," in a will, is not a technical expression; and therefore it will 
yield to the intention of the testator, to be collected from the whole will. Hence, also, 
it requires a less demonstrative context to show the testator's intention in regard to 
this word, than it does in regard to the technical expression " heirs of the body." Lees 
u. Mosley, 1 Y. & C. 589. For the exposition of both these expressions, see Hayes 
on the Construction of Limitations, Prop, xiv., xv. p. 14-22. [See also, Wynch's 
Trust, 28 Eng. Law & Eq. 378.] 



Title XXXVIII. Devise. Ch. XII. s. 29—32. 305 

ion of the Court of C. B., and the certificate was, that J. 
Wharton took an estate in tail male in the premises. 

30. C. Stevens, being seised in fee of the lands in question, 
devised the same in the following manner : — " I also give and 
devise to my son William Stevens, when he shall accomplish 
the full age of twenty-one years, the fee simple and inheritance 
of Lower Shelton, to him and his child and children forever. 
But if my son W. S. should happen to die before he should 
accomplish the full age of twenty-one ; then I give and bequeath 
the fee simple and inheritance of Lower Shelton to my wife for- 
ever, (a) 

Lord Mansfield said, if the testator had used the words, "all 
his estate," "inheritance," or "forever;" and had stopped there, 
the fee simple would have passed; but the words "child" or 
" children " were to the full as restrictive as if he had said, " and 
if my son die without heirs of his body." The words of the will 
gave the son an estate tail, for there were no children born at the 
time, to take an immediate estate by purchase : the meaning was 
the same as if the expression had been to William and his heirs, 
that is to say, his children, or his issue. The word, "forever," 
made no difference, for William's issue might last forever, (b) 

31. The Master of the Rolls directed the following case to be 
made, for the opinion of the Court of K. B. T. Lowe devised to 
his daughter Anne, all his estate and effects, real and personal, 
and added these words, — " who shall hold and enjoy the same 
as a place of inheritance, to her and her children, or her issue for- 
ever. And if it should so happen that my daughter Anne should 
die leaving no child or children, or if it so happen that my 
daughter Anne's children should die without issue," then he 
directed his estates to be sold, (c) 

The Court certified that Anne took an estate tail. 

32. An estate tail may be created in a will, by mere implica- 
tion, without any express words of devise. 1 As, where S. A. had 

(a) Davie v. Stevens, 1 Doug. 321. (6) [Doe v. Bradley, 16 East, 399, 403-4.] 

(c) Wood v. Baron, 1 East, 259. 



1 See 2 Jarm. on Wills, ch. 39, per tot, Perkins's ed. ; Jackson v. Billinger, 18 Johns. 
368, 381, per Spencer, C. J. 

26* 



306 Title XXXVIII. Devise. Ch. XII. s. 32—35. 

issue three sons, B, C, and D ; B died, leaving his wife 
ensient ; S. A. devised to the child his son's wife then went 

with, .£20 yearly, and if his son C die before he had any 
241 * issue of his * body, so that his land descended to D before 

he- came to twenty-one years, then his executors should 
occupy it till D was twenty-one years of age. It was held, that 
C took an estate tail by implication, as well by the words — " If 
he die before he has issue," as if it had been, " If he die without 
issue." (a) 

33. One Counden devised as follows : — " As touching all my 
lands in T. &c, whereof I now stand seised, which of right 
will, and my only intent and meaning is, shall descend and come 
unto John Counden my son, after my decease, this is my will." 
And then appoints that certain persons should receive the profits 
of them till his son came to twenty -four years, and then they to 
make an account and satisfy him. Then adds this clause, — 
"Provided always, 'that if my son John shall happen to decease 
without issue of his body, then I will all and singular my said 
lands, &c. shall go unto the right heirs males and posterity of 
my name forever." It was /held that John Counden took an 
estate tail, (b) 

34. R. W. having two sons, Richard the elder, and William 
the younger, devised in these words : — " It is my will, that if 
Richard my son shall happen to die, and leave 'no issue of his 
body lawfully begotten, that then and in that case, and not other- 
wise, after the death of the said Richard my son, I give and 
bequeath all my lands of inheritance in L. unto the said William 
my son, to have and to hold the same, after the death of the said 
Richard, to him and his heirs." Adjudged by Baron Price, that 
Richard took an estate tail by implication, (c) 

35. I. G. having two sons, Richard and John, devised all his 
lands to his wife for life, and then proceeded in these words, — . 
-" And my will is, that if my son Richard do happen to die with- 
out heirs, then my son John shall enjoy my lands." ■ Resolved, 
that Richard took an estate tail by implication, (d) 

(a) Newton v. Barnardine, Moo. E. 127. 

Sfi) Counden v. Clerke, Hob. 29. (M'Clintick v. Manus, 4 Mnnf. 328. Terry v. Briggs, 
12 Met. 17.) 
•(c) Walter v. Drew, Com. R. 372. (Eoe v. Vernon, 6 East, 85.) 
i.d) Goodridge v. Goodridge, 7 Mod. 463. Willes E. 369. 



Title XXXVIII. Devise. Ch. XII. 5. 36—39. 307 

36. A person, having issue a son, B., who was his heir appar- 
ent, and two daughters, devised in these words : — " If it happen 
my son B. and my two daughters to die without issue of 
their bodies lawfully begotten, then all my lands shall be and 
remain to my nephew D. and his heirs forever." (a) 

It was held, I. That no express estate was by this will given to 
his children. II. Nor any estate by implication ; because then 
it must either be a joint estate for life, with several inheritances 
in tail, or several estates tail in succession one after 
* another. The last it could not be, because it was un- *242 
certain which should take first, which next ; and the first 
it should not be, because the heir at law is not to be disinherited 
without a necessary implication, which in this case there was 
not ; for it was only a designation or appointment of the time 
when the land should come to the nephew. 

37. It was resolved, in 1 & 2 Eliz., that a devise to A and the 
heirs male of his body, and if he chance tolflie without heirs of 
his body, remainder over, only created an estate in tail male ; 
because an implication shall not control an express limita- 
tion, (b) 

38. A devise to a person generally, without any words of 
limitation, which of itself would create no more than an estate 
for life, may be enlarged by implication into an estate tail. 

39. M. Sonday devised a house to Margaret, his wife, for life, 
and after her decease, his son William to have it ; and if his son 
William married, and had by his wife any male issue, lawfully 
begotten of his body, then his son to have it ; if he had no male 
issue lawfully begotten of his body, then his son Samuel to have 
the house. And added a clause, that if any of his sons or their 
heirs male, issue of their bodies, went about to aliene or mort- 
gage the house, then the next heir to enter, (c) 

It was resolved, that an estate tail male was created, for three 
reasons. I. Because the testator says, " If he hath no issue male, 
his next son to have it," which was as much as to say, "if 
William dies without issue male," which words were sufficient 
to create an estate tail in him. II. The last clause, "if any of 

(a) Gardiner v. Shelton, 1 Ab. Eq. 197. 

(6) Tnrke v. Frenoham, 2 Dyer, 171 a. 1 Vent. 230. (Willis e. Bucher, 2 Binn. 455.) 

(c) Sonday's case, 9 Rep. 127. 



308 Title XXXVIII. Devise. Ch. XII. s. 39— 44. 

his sons or their heirs male, issue of their bodies, go about," &c. 
III. The thing prohibited proved it, for if the sons only took an 
estate for life, this restraint would have been idle. 

40. A person devised to his three daughters,, to be equally- 
divided ; and if any of them died before the other, then the one 
to be the other's heir, equally to be divided; and if his three 
daughters died without issue, then he willed it to two strangers. 
Adjudged that the daughters took estates tail, (a) 

41. A person devised land to his wife for life, and after to 
his son, and if his son died without issue, having no son, that 
another should have it. Adjudged, that the son took an estate 
tail, (b) 

42. A man, having issue two sons, devised all his land to his 
eldest son, and if he died without heirs male, then to his other 

son in like manner, (c) 
243* *The Court said, it was plain the word "body," which 

properly created an estate tail, was left out ; but the in- 
tent of the testator might be collected out of his will, that he de- 
signed an estate tail, for without this devise, it would have gone 
to his second son, if the first had died without issue. It was 
therefore an estate tail. 

43. R. Johnson, being seised in fee of a copyhold estate, de- 
vised to J. W. his house in the Brook, and £30 ; and to W. T., 
his sister's son, a house with the ground and outhouses thereto 
belonging ; and declared his will and meaning to be, that if 
either of the persons before named died without issue lawfully 
begotten, then the said legacy should be divided equally between 
them that were left alive. Adjudged, that W. T. took an estate 
tail, (d) 

44. A person devised to the three sons- of C. D. successively in 
tail male, remainder to every son and sons of the said C. D. which 
should be begotten on the body of Sarah his wife ; and for want 
of such issue, to W. H., &c. ; with a proviso, that the first dev- 
isee, and others to whom the estate was devised, and his and 
their descendants should, when in possession, take the surname 
and arms of the testator, (e) 

(a) King v. Rumball, Cro. Jac. 448. (6) Robinson v. Miller, 1 Koll. Ab. 837. 

(c) Blaxton v. Stone, 3 Mod. 123. (d) Hope v. Taylor, 1 Burr. 268. 

(e) Evans v. Astley, 3 Burr. 1570. 



Title XXXVIII. Devise. Ch. XII. s. 44—45. 309 

The Court resolved, that the after-born sons took several estates 
in tail male, in succession ; as the words, "for want of such issue" 
must be construed, for want of heirs male of the body ; and that 
this was the true construction. 

45. A person devised in these words : " I give and bequeath 
all my copyhold lands to my nephew Isaac Slater ; but if the 
aforesaid Isaac Slater shall die without male heir, then my will 
is, that my nephew John Slater shall enter upon and enjoy the 
said copyhold lands, his heirs or assigns forever ; provided the 
aforesaid Isaac- Slater paid to his wife Elizabeth the sum of £8 
a year during her life ; with a power of entry to the wife if the 
annuity was not paid." (a) 

It was contended, that Isaac took a fee by reason of the 
annuity. 

Lord Kenyon said it was clear, from all the cases on the sub- 
ject, that Isaac took only an estate tail. He cited the case of 
Blaxton v. Stone, and Burley's case, 43 Eliz. stated by Lord 
Hale in 1 Vent. 230 ; which was a devise to A for life, remain- 
der to the next heir male ; for default of such heir male, then to 
remain. Adjudged an estate tail. 1 

* With regard to the other question, the law was very * 244 
accurately stated by Lord Mansfield, in the case in Cow- 
fa) Denn v. Slater, 5 Term R. 335. 



1 The following are also cases of estates tail by implication, arising from a limita- 
tion over upon the contingency of dying without issue, &c. Lillibridge v. Adie, 1 
Mason, 224 ; Osborne v. Shrieve, 3 Mason, 391 ; Wright v. Scott, 4 Wash. 16 ; Willis 
v. Bueher, 3 Wash. 369 ; 2 Binn. 455 ; Hurlbert v. Emerson, 16 Mass. 241 ; Dart v. 
Dart, 7 Conn. 250 ; Wadsworth v. Hudson, 8 Conn. 348 ; Williams v. M'Call, 12 
Conn. 328 ; Ide v. Ide, 5 Mass. 500 ; Hawley v. Northampton, 8 Mass. 3 ; Jackson v. 
Billinger, 18 Johns. 368 ; Lion v. Burtis, 20 Johns. 483 ; Haines v. Witmer, 2 Yeates, 
400 ; Clark v. Baker, 3 S. & K. 470 ; Hill v. Burrow, 3 Call, 342 ; Tate v. Tally, 
Ibid. 354 ; Selden v. King, 2 Call, 73 ; Elbridge v. Fisher, 1 Hen. & Munf. 559 ; 
Hoxton v. Archer, 3 G. & J. 199 ; Wheatland v. Dodge, 10 Met. 502 ; Shoemaker v. 
Huffnagle, 4 W. & S. 437 ; Elliott v. Pearsoll, 8 W. & S. 38 ; Eichelberger v. Burnitz, 
9 Watts, 447 ; Somers v. Pierson, 1 Hair. 181 ; Thomason v. Andersons, 4 Leigh, 
118. 

See also, Abram v. Ward, 6 Hare, 165; 11 Jur. 867; Lewis u. Puxley, 16 Law 
J. 216, Exch. ; 16 M. & W. 733, S. C. ; Mellish v. Mellish, 2 B. & C. 520 ; 3 D. & 
B. 804, S. C. ; Simmons v. Simmons, 8 Sim. 22; Machell v. Weeding, Ibid. 4 ; Grim- 
shawe v. Pickup, 9 Sim. 591 ; Dunk v. Eenner, 2 Russ. & My. 557 ; Terry v. Briggs, 
12 Met. 17. 



310 Title XXXVIII. Devise. Ch. XII. s. 45^8. 

per, where an estate was given generally, without adding words 
which would create a fee, or an estate tail, and it was charged 
with the payment of annuities; the devisee took a fee; but 
that was not the case where an estate tail was given to the 
devisee, (a) 

46. An express devise to a person for life may be enlarged by 
subsequent words, or by a necessary implication, into an estate 
tail; for where an estate is devised to a person for life, with a 
devise over, which is not to take effect while there is any issue 
of the devisee for life, if there be no words in the will under 
which the issue can take as purchasers, the courts, in order to 
carry the manifest general intent of the testator into effect, have 
disregarded the particular intent, and by enlarging the estate 
devised for life into an estate tail, have let in all the issue of the 
first devisee, (b) l 

47. Lands were devised to A for life, without waste, with a 
power to make a jointure ; remainder to his first, second, and so 
to his sixth son, and no further ; after which followed these 
words, " if A should die without issue male of his body, then 
to B in fee." (c) 

This case having been sent out of Chancery, to the Court of 
C B., it was resolved there, that there being no limitation beyond 
the sixth son, and for that there might be a seventh, who was 
not intended to be excluded, therefore to let in the seventh and 
subsequent sons to take, but still to take as issue and heirs of the 
body of A in tail by descent, and not by purchase, the Court 
held, that the words, " in case A should die without issue male 
of his body," did, in a will, make an estate tail. 

48. J. Sutton devised a house to his nephew Thomas Sutton 

(a) Doe v. Fyldes, ante, s. 6. 

(J) (Evans o. Davis, 2 Teates, 332. In re James, 1 Dall. 47. Malcolm v. Malcolm, 3 
Cnsh. 472.) 
(c) Langley v. Baldwin, 1 P. Wms. 759. Fitz. 13. 8 Mod. 258. 



l Where estates tail are abolished, or turned into other estates by statute, as is the 
case in many of the American States, the Courts, it seems, will not, by implication, 
turn an express estate for life, with limitations over in remainder, into a fee tail ; be- 
cause, though it is done, in England, to give effect to the general intention of the tes- 
tator, yet in those States where estates tail are no longer known, such a construction 
would defeat that intention. Smith v. Chapman, 1 Hen. & Munf. 240, 303 ; ante, tit. 
2, ch. 2, § (44.) And see Anderson v. Jackson, 16 Johns. 382. 



Title XXXVIII. Devise. Ch. XII. s. 48. 311 

for and during the term of his natural life, and after his death, 
to the first son or issue male of his body, lawfully begotten, and 
to the heirs male of the body of such first son ; and for default 
of such issue, to the second son or issue male of the body of the 
said Thomas, lawfully to be begotten forever. And from and 
immediately after the death of the testator's wife, and of his said 
nephew Thomas Sutton, without issue male of his body, or after 
the death of such issue male, he devised all the said premises to 
trustees for charitable purposes, (a) 

*It was resolved by the Court of Exchequer, that *245 
Thomas Sutton took an estate tail by implication. 

On an appeal to the House of Lords (&) it was insisted on be- 
half of the appellants, that it was most manifestly the intention 
of the testator, that his nephew Thomas Sutton, who was not his 
heir at law, should have no greater estate than for his life only : 
and accordingly the estate was expressly limited to him for and 
during the term of his natural life, with remainders to his sons 
as purchasers. That it could not be pretended there were any 
words in the will, which, in a deed, could possibly have created 
an estate tail in Thomas Sutton ; if therefore any such estate was 
created, it must be by implication, or presumption of the testa- 
tor's intention, and not by the legal import or construction of the 
words themselves ; but that such an implication was directly 
contrary to the express declaration of the testator in almost every 
branch of his will, as well as destructive of the charities which 
he intended to establish. 

On the other side it was argued, that under the testator's 
will, Thomas Sutton took an estate tail by implication, the re- 
mainder being after his death without issue male. As to the 
objection that the limitation after his death, without issue male 
of his body, was to be understood such issue male as was men- 
tioned in the will, viz. his first and second sons ; it was answered 
that all the issue male which Thomas Sutton might possibly 
have, viz. his third, fourth, and every other son and sons, not 
being expressly provided for by the will, the limitation after his 
death without issue male, raised the same estate to him by impli- 
cation, as if it had been limited to him and his issue male, in ex- 
press words. 

(a) Att.-Gen. v. Suttou, 1 P. Wms. 754. (6) 3 Bro. Pari. Ca. 75. 



312 Title XXXVIII. Devise. Ch. XII. s. 48—49. 

The decree of the Court of Exchequer was affirmed. 

49. On a trial at the great sessions for the county of Flint, 
the jury found a special verdict, that T. Ravenscroft had devised 
lands to trustees and the survivor of them, in trust for his sisters 
Ann and Dorothy, equally between them, during their natural 
lives, without committing any manner of waste ; and if either of 
his said sisters happened to die, leaving issue or issues of her or 
their bodies, then in trust for such issue or issues of the mother's 
shares, or else in trust for the survivor or survivors of them, and 
their respective issue or issues : and if it should happen 
246 * that *both his said sisters died without issue as aforesaid 
and their issue or issues to die without issue or issues, 
then the trustees to stand seised for his kinsman John Swift, and 
the heirs male of his body. The Court of Great Sessions deter- 
mined, that Dorothy, having survived her sister Ann, was tenant 
in tail of one moiety under the devise, and of the other moiety 
as a remainder, upon the death of her sister without issue, (a) 

Upon a writ of error in the Court of K. B. Lord Ch. J. Ray- 
mond delivered the opinion of the Court, in a long and elaborate 
argument, that Ann and Dorothy took only an estate for life : 
that the word " issue," in the first place, was a word of purchase 
and the subsequent words were words of limitation, and created 
an estate tail in such issue. Consequently, the judgment of the 
Court of Great Sessions was reversed, (b) 

A writ of error was then brought in the House of Lords, 
where it was argued, on behalf of the plaintiff in error, that by 
the words and intention of the will, the testator's two sisters, 
Ann and Dorothy, had an estate, tail, as tenants in common, with 
dross-remainders of their several moieties ; and as Ann died with- 
out issue, Dorothy became entitled to the whole estate ; for that 
in construction of law, a devise to one with a limitation over to 
another, if such first person dies without issue, creates an estate 
tail in that person, as well as if the devise had been to him or 
her, and the heirs of his or her body. 

For the defendant in error it was said to be a known rule, in 
the construction of wills, that the intention of the devisor ought 
in all cases to be observed, if it can be, consistent with the rules 

(o) Sparrow v. Shaw, 3 Bro. Pari. Ca. 120. [Ward v. Bevil, 1 Yo. & Jer. 512.] 
(5) Shaw v. Weigh, Fitz. 7. Vide o. 14, § 60. 



Title XXXVIII. Devise. Ch. XII. s. 49. 313 

of law. Now this devise was expressly to the sisters during 
their natural lives, with the addition of this restrictive clause,, 
without committing any manner of waste, which showed the 
intent of the testator, strongly, that his sisters should only have 
an estate for life ; for if he had intended them an estate tail, he 
could not have restrained them from committing waste. That 
the next devise was to the issue of the sisters, with the limita- 
tions annexed thereto, as in the will ; and it was contended, by 
the plaintiffs in error, that the word " issue " was a word of limi- 
tation, and should raise an estate tail in the sisters. But it was 
hoped that " issue " would here be construed as a word of pur- 
chase, and a designation of the persons intended to take the 
estate ; in which case, it could never extend to enlarge the 
estate given to *the sisters for life. In a will,it might some- * 247 
times be taken as a word of limitation, to answer the tes- 
tator's intention, where such intention appeared manifestly from 
the construction of the whole will. But in the present case, it 
was plain the testator intended that the issue of his sisters should 
take by purchase, and therefore he made use of the word " issue " 
as a designation of the persons who were to take ; for he did not 
barely give the estate to the issue or issues of his sisters, but 
further devised it to the survivor or survivors of them, and then- 
respective issue or issues, that is, to the issue or issues of such 
issue or issues as his sisters should leave ; for the word " survi- 
vors" in the plural number, was not applicable to the sisters, there 
being but two of them, but must relate to their issue. The first 
limitation therefore was to the issue of the issue, whence the first 
issue, to whose estate this limitation was annexed, must take by 
purchase. 

It had been objected, that the word "issue" was nomen col- 
lectivum, and should take in all the descendants, and consequently 
create an estate tail in the sisters. But the word " issue " was only 
to be understood in this sense when it was a word of limitation ; 
for it had always been taken in a different sense when it was a 
word of purchase. It had also been insisted on, that an estate 
tail should be raised in the sisters by implication, from these 
words, " if it shall happen that both my said sisters die without 
issue as aforesaid, and their issue or issues to die without issue or 
issues" then the subsequent remainders were given. Wherever 

vol. in. 27 



314 Title XXXVIII. Devise. Ch. XII. s. 49—50. 

an estate tail had been raised by implication, it had been to 
answer the apparent intention of the testator ; but in the present 
case, the very words from which an estate tail was to be implied, 
showed that the testator took notice that he had before limited 
the estate to the issue of the issue. Besides, the words were not 
general, " if both my said sisters die without issue ; " but, " if 
both my said sisters die without issue as aforesaid," which showed 
the testator's intention not to enlarge the estate before given to 
his sisters. 

The Judges attended, and having conferred with the Lord 
Chancellor, his Lordship acquainted the house, that the Judges 
of the King's Bench were of the same opinipn they were when 
they gave judgment in this case ; but that there was a difference 
of opinion in the Judges of the Common Pleas and Barons of 
the Exchequer, who desired time to confer, in order to be 
248 * more * clear in their opinions. . Some days after, all the 
Judges attended; and after delivering their opinions 
seriatim in relation to a point of law to them proposed, it was 
ordered and adjudged, that the judgment given in the Court of 
King's Bench, reversing adjudgment given in the Court of Great 
Sessions, should be reversed ; and that the judgment of the Court 
of Great Sessions should be affirmed, (a) 

50. G. Robinson devised a real estate to Launcelot Hicks, for 
and during the term of his natural life, and no longer ; provided 
he altered his name and took that of Eobinson, and lived at his 
house at Bochym ; and after his decease, to such son as he should 
have, lawfully to be begotten, taking the name of Robinson ; and 
for default of such issue, then he bequeathed the same to his 
cousin W. R. and his heirs forever, (b) 

Upon a bill to establish this will, and to carry the trusts of it 
into execution, Sir Joseph Jekyll declared that Launcelot Hicks, 
alias Robinson, was entitled to an estate for life, with remainder 
to his eldest and but one son, for his life ; and that the remainder 
would go over to W. R. 

On an appeal from this decree, Lord Talbot affirmed it, as 
to the interest which L. Hicks took in the testator's estate 
under his will, by a declaration in the very words of the former 
decree. 

(a) Stanley v. Leonard, 1 Eden, 87. Amb. 255. 

(i) Robinson v. Hicks, 1 Burr. 38. 2 Vez. 225. Lord Ken. B. 298. 



Title XXXVIII. Devise. Gh. XII. s. 50. 315 

Launcelot Hicks had two sons, George, who died an infant, 
and Edmund, who filed another bill against W. B,., the devisee 
in remainder, and the trustees, for an execution of the trust of 
the will. 

Lord Hardwicke ordered a case to be made for the opinion of 
the Court of King's Bench, upon the following question : — 
" Whether any and what estate or interest in the premises in 
question, did, by virtue of the said will, vest in the said Ed- 
mund." 

The Judges certified their opinion, that upon the true con- 
struction of the will, Launcelot Hicks must by necessary impli- 
cation, to effectuate the manifest general intent of the testator, 
be construed to take an estate in tail male ; he and the heirs 
male of his body taking the name of Robinson ; notwithstanding 
the express estate devised to the said L. Hicks for his life, and 
no longer. 

The cause coming on to be heard on this certificate, before the 
Lords Commissioners, they confirmed it. 

*On an appeal to the House of Lords, it was argued on *249 
behalf of the appellant, that the greatest difficulty oc- # 
curring in the construction of wills was, to form a true judgment 
where the presumed general intent of a testator ought to prevail, 
and where the legal operation of his words should take place. 
If the intention could be collected clearly from plain decisive 
evidences, such as had been received and allowed in courts of 
law and equity, by the current of authorities in similar cases, it 
must prevail. But if, on the one hand, the presumed intention 
be obscure and ambiguous, not necessarily implied in the words, 
and wholly inconsistent with the legal operation, and if, on the 
other hand, the legal operation produces a clear uniform sense, 
without contradiction or absurdity, that construction ought to 
be preferred which explains the intention of the testator with 
the least violence to his words. That though this case arose 
upon the devise of a trust, yet the Court of Chancery, in sending 
it to a court of law, judged that it ought to be governed by the 
same rules of construction as the devise of a legal estate ; and 
it was submitted that the will afforded no stronger coercive legal 
evidences of intent, such as must induce a court of law, from the 
necessity of his meaning, to overrule the legal operation of his 



316 Title XXXVIII. Devise. Ch. XII. 5. 50. 

words, and vest an estate of inheritance in tail male in L. Hicks, 
in prejudice to his heir at law. (a) 

It would serve to explain the grounds on which the appellant 
proceeded, if it was considered, I. What estate was devised to 
L. Hicks the father. II. What estate was devised to his son. 
As to the first question, the testator had not left the possibility 
of a doubt, if his express declaration deserved any weight. He 
devised all his estate to L. Hicks, the father, for life, and no longer; 
enforcing his devise by negative words, which had hitherto been 
allowed, in all the cases adjudged, to be sufficient to prevent 
any implication by way of enlarging the estate, and extending 
the duration of it ; so that the decree of the Court of Chancery, 
grounded upon the certificate of the Court of K. B., controlled 
not only the legal force of the words, but their meaning in 
common use, and in effect expunged them out of the will : that 
as all the authorities concurred against enlarging an estate for life 
into an estate of inheritance, where negative words were added, 
to strengthen the express devise ; so likewise they were uniform 
in not raising an estate tail by implication in the tenant 
250* for *life, either by way of present estate in possession, or 
by way of remainder in tail, after other limitations, unless 
the testator had limited express estates of inheritance to some of 
the sons or issue of the ancestor, tenant for life, nominatim, or 
by description ; and then devised over the lands to another 
family, in default of issue generally of that- ancestor. But this 
was the first case, in which it had been held, that the tenant for 
life took an estate tail by implication, in virtue of the connecting 
words, "for want of such issue" where the default of issue on 
which the implication was raised, was not general, but relative, 
by force of the word such, to a particular antecedent limitation ; 
and where that antecedent limitation was made only to one son 
of the tenant for life, without any collective description of his 
heirs male, or heirs of his body, and without any words devising 
an inheritance to that son. 

As to the second question, — what estate was devised to the son 
of L. "Hicks, — if the father took only an estate for life, there was 
no color to say that any one could entitle himself as devisee of 
an estate of inheritance, by words of purchase in the will. The 

(o) 3 Bro. Pari. Ca. 180. 



Title XXXVIII. Devise. Ch. XII. s. 50. 317 

devise was made, after the death of L. Hicks, to such son as he 
should have: no express words of limitation were annexed to it, 
to give an inheritance ; no words on which it could be implied : 
the only doubt arising on some words, which referred clearly to 
a failure of issue (whether a general or limited failure was the 
question,) not of the son, but of the father ; hence it followed, 
that the son, intended by the will, could only take an estate for 
life. 

In support of the decree, it was contended that the words, 
" son," " children," " issue" and " heir," in a will, where no son 
was in being at the time of the devise, were nomina collective/,, 
and sufficient to create an estate of inheritance, and carry the 
land, not only to the immediate heir or issue, but to all that de- 
scended from the devisee : that the testator in this case could 
not have any particular person in view to take, but the issue 
male of L. Hicks in a collective sense, was clear ; because at the 
time of making his will, L. Hicks was a bachelor, and therefore 
to suppose he could mean to give a life-estate only to some one 
son of L. Hicks, not then in being, would be a construction 
equally illiberal and absurd : that this* was made still plainer by 
the words which followed, namely, "for default of such 
issue ; " for * these words explained what kind of an estate, * 251 
as to its continuance or duration, the devisee should take, 
and were so frequently used to denote an estate tail, that they 
were become almost technical : so that express words were hardly 
better to be understood than the implication arising from this 
phrase : that in the case of wills, the testator was inops consilii, 
and had not always opportunities of observing the formalities of 
law : and it was a general rule, that the intention of the testator 
was to govern in the construction of wills ; and that the Judges 
would go as far as they could to assist and give effect to such 
intention.; and therefore, 'as the word "son" would, in a will, 
signify an estate tail, as well as the words "issue" or "children," 
it was insisted that the devise in the will must, by consequence 
and operation of law, to manifest the intent of the testator, be 
construed to create an estate tail. 

The Judges were directed to give their opinions upon the 
following question; — "Whether any and what estate or interest 
vested in Edmund Hicks ; to which the Lord Ch. B. delivered 
27* 



318 Title XXXVIII. Devise. Ch. XII. s. 50—51. 

their unanimous opinion, that an estate in tail male was vested 
in Edmund Hicks, as heir male of the body of Launcelot Hicks : 
whereupon the decree was affirmed. 

51. A. Dymock devised to his nephew, William Dymock, all 
his freehold estate at A., to hold to him during his natural life ; 
and after his decease, to and amongst his issue ; and in default 
of issue, to be divided between his nephew and niece, their heirs 
and assigns forever, (a) 

Lord Kenyon.—" Although this will is very inaccurately drawn, 
I think we may collect the devisor's general intention, from the 
words of it. The great question in this case is, what estate 
W. Dymock took under the will. In the first clause, the estate 
is expressed to be given only during his natural life ; but in the 
next limitation, it is to go to his issue, and in default of issue 
only it was to go over ; it is clear, therefore, from the whole of 
the will, that the devisor did not intend that it should go over 
to those in remainder, until after a general failure of issue in 
"W. Dymock. Now, I think we are warranted by many deter- 
minations, and particularly by that of Robinson v. Hicks, to 
give that effect to the will which will best answer the devisor's 
general intention, though by so doing we may defeat some par- 
ticular intent. 1 Here the general intent was, that W. Dymock 

(a) Doe v. Applin, 4 Term E. 82. 



1 See ace. Doe v. Halley, 8T.R.5,9; Sherratt v. Bentley, 2 My. & K. 149. But 
this rule was questioned, and limited in its application, in the subsequent case of Doe 
v. Gallini, 5 B. & Ad. 621, by Lord Denman, in delivering the judgment of the Court, 
in the following terms : — " The doctrine that the general intent must overrule the par- 
ticular intent has been much, and we conceive justly, objected to of late ; as being, as a 
general proposition, incorrect and vague, and likely to lead, in its application, to erro- 
neous results. (See Powell on Devises, 3d ed. u. 27, Vol. II. p. 552.) In its origin, 
it was merely descriptive of the operation of the rule in Shelley's case ; and it has since 
been laid down in others, where technical words of limitation have been used, and other 
words, showing the intention of the testator, that the objects of his bounty should take 
in a different way from that which the law allows, have been rejected ; but in the latter 
cases, the more correct mode of stating the rule of construction is, that technical words, 
or words of known legal import, must have their legal effect, even though the testator 
use inconsistent words, unless those inconsistent words are of such a nature as to make 
it perfectly clear that the testator did not mean to use the technical words in their proper 
sense: and so it is said, by Lord Redesdale, in Jesson v. Wright, 2 Bligh, 57. This 
doctrine of general and particular intent ought to be carried no further than this ; and 



Title XXXVIII. Devise. Ch. XII. s. 51—52. 319 

and * his issue should take first : then what construction * 252 
will best effectuate that intention ? It has been argued 
by the plaintiff's counsel, that W. Dymock took only an estate 
for life, and his children an estate tail ; but it would be diffi- 
cult to put two different interpretations on the word " issue : " 
and even if that could be done, it would not further the inten- 
tion of the devisor in this case ; for there are no cross remainders 
to the children, and they never can be implied ; so that according 
to the construction contended for, if one of the children died, 
his share would go over to those in remainder, in, prejudice of 
those children who survived ; which was certainly not intended 
by the devisor. Therefore we shall best answer his general 
intent by saying that W. Dymock took an estate tail : and in so 
determining, we shall not go further than has been done in other 
cases." Judgment was given accordingly, (o) 1 

52. A person devised all his freehold messuages, &c, to his 
daughter Mary Ayscough, and the heirs of her body lawfully to 
be begotten, for ever, as tenants in common, and not as joint 
tenants ; and in case his said daughter should happen to die 
before twenty-one, or without having issue on her body lawfully 
begotten, then he gave his freehold messuages to R. Ayscough, 
in fee. (6) 

Lord Kenyon said, it was a rule of construction in cases of 
this kind, settled by a variety of decisions, but particularly by 
that of Robinson v. Hicks, that where it appeared in a will that 
the testator had a general intention, and also a secondary inten- 
tion, and they clashed, the latter must give way to the former. 
Here were no words of limitation added to the estate given to 
the children, (supposing they took as purchasers,) and yet the 
remainder over was not to take place till there was a general 

(o) Denn v. Puckey, 5 Term E. 299. (b) Doe v. Smith, 7 Term E. 531. 



thus explained, it should be applied to this and all other wills. Another undoubted 
rule of construction is, that every part of that which the testator meant by the words 
he has used, should be carried into effect as far as the law will permit, but no further ; 
and that no part should be rejected, except what the law makes it necessary to reject." 
Sec also, 3 Ad. & El. 340 ; 4 Nev. & M. 894, S. C. 

i Franks v. Price, 5 Bing. N. C. 37 ; 3 Beav. 182; Medlycott v. Jortin, 6 Moore, 1 ; 
2 B. & B. 632 ; Broadhurst v. Morris, 2 B. & Ad. 1 ; Doe v. Charlton, 1 M. & G. 429 ; 
1 Scott, N. R. 490. 



320 Title XXXVIII. Devise. Ch. XII. s. 52—54. 

failure of her issue ; so that there must be an estate to compre- 
hend all her children forever. He concluded in these words : — 
" I admit that in this case the testator intended that his daughter 
M. A. should only take an estate for life, and that her children 
should take as purchasers ; but then he also intended that all the 
progeny of those children should take before any interest should 
vest in his more remote relations ; now the latter intention can- 
not be carried into effect unless M. Ayscough takes an estate in 

tail; in order, therefore, to give effect to the devisor's 
253* * general intention, according to the fair construction of 

the will, M. Ayscough must take an estate tail." (a) 

53. H. Cook devised a messuage to R. Cook for the term only 
of his natural life ; and after his decease, he gave and devised 
the same unto the lawful issue of the said R. Cook, as tenants 
in common ; but in case the said R. Cook should die without 
leaving lawful issue, then, and in such case, after his decease, he 
gave and devised the same to Eliz. Harding in fee. (b) 

Lord Kenyon said, it had been the settled doctrine of West- 
minster Hall, for the preceding forty or fifty years that there 
might be a general and. a particular intent in a will ; and that the 
latter must give way, when the former could not otherwise be 
carried into effect. That this doctrine had been confirmed" by 
the cases of Robinson v. Hicks, Roe v. Grew, and others. That 
perhaps the Court would best fulfil the particular intent of the 
testator in this case, by giving R. Cook only an estate for life ; 
but the general intent was, that all his issue should inherit the 
entire estate, before it went over ; and that intent could only be 
answered by giving him an estate tail, by implication from the 
subsequent words, in default of his leaving issue, (c) 

Judgment was given accordingly. 

54. In the case of a devise to the use of testator's daughter 
for her life, and after her decease to the use of the issue of her 
body lawfully begotten, and in default of issue, or in case none 
of such issue live to attain the age of twenty-one years, then to 
testator's brother S., for life, and after his death to the use of the 
issue of his body ; and in default of issue, or in case none of 

(a) [Doe dem. Wright v. Jesson, 5 M. '& Selw. 95. 2 Bligh, 1, overruling Doe «. Goff, 
11 East, 668. Doe v. Featherstone, 1 Bar, & Jtdol. 944.] (b) Doe v. Cooper, 1 East, 229 

(c) Pearson v. Viokers, 5 East, 548. Wight v. Leigh, 15 Ves. 564. 



Title XXXVIII. Devise. Ch. XII. s. 54—55. 321 

such issue live to attain the age of twenty-one years, then to 
another brother and his issue in the same manner. The Court 
of C. P. held that the daughter took only an estate for life, (a) 

55. Where an estate for life is devised to a person, with a sub- 
sequent devise to his heirs, or to the heirs of Ms body, the devisee 
will take an estate in fee or an estate tail ; in consequence of a 
rule of construction which shall be stated hereafter, (b) 

(a) Merest v. James, 1 Brod. & Bing. 484. (J) Vide ch. 14. 



322 



CHAP. XIII. 

CONSTRUCTION — WHAT WORDS CREATE AN ESTATE FOR LIFE, A TERM 
FOR YEARS, AND UNCERTAIN INTERESTS. 



Sect. I. Where an Express Estate for 
Life is given. 
5. Though a Power of Dispos- 
ing be added. 
9. A Devise without any Words 
of Limitation. 
28. Though charged with a Pay- 
ment. 
36. Or an Annuity during the 
Life of the Devisee. 



Sect. 38. The word Estate when de- 
scriptive of local situation. 
The word Hereditament. 
Where the General Intent is 
to give a Life Estate, though 
words of limitation used. 
What Words create a Term 
for Years. 
49. And uncertain Interests. 



41. 
42. 



47. 



Section 1. It has been stated in the preceding chapter, that 
although an express estate for life only be devised to a person, 
yet if the general intent of the testator require that the issue of 
the devisee for life should take by descent from him, the courts 
have enlarged his estate into an estate tail ; but where the mani- 
fest general intent of the testator does not require that the estate 
for life expressly given should be enlarged into an estate tail, the 
devisee will only take an estate for life : 1 in consequence of the 
rule that expressum facit cessare taciturn : and it is observable 
that the doctrine of effectuating the general intent, in contradic- 
tion to the particular intent, is of modern date, (a) 

(a) See ante, ch. 12, s. 53. 



1 In the following cases, the general intent of the testator was deemed not to require 
an enlargement of the estate expressly given for life : Bool v. Mix, 17 Wend. 119; 
Shriver v. Lynn, 2'How. S. C. Rep. 43 ; Nason v. Blaisdell, 17 Verm. 216 ; M'Lellan 
v. Turner, 3 Shepl. 436 ; Zimmerman v. Anders, 6 W. & S. 218 : Davison v. Gates, 
11 Pick. 247 ; Findlay v. Kiddle, 3 Binn. 139 ; Dunwoodie v. Reed, 3 S. & R. 435 ; 
White v. Woodbury, 9 Pick. 136 ; Smith v. Carr, 1 Hen. & Munf. 240 ; In re Saunders, 
4 Paige, 293 ; Parr v. Swindels, 4 Euss. 283 ; Monk v. Mawdsley, 1 Sim. 286 ; Lushing- 
ton v. Sewell, 1 Sim. 435 ; Barnacle v. Nightingale, 14 Sim. 456 ; Festing v. Allen, 5 
Hare, 573 ; [Pratt v. Leadbetter, 38 Maine, (3 HeathJ 9 ; McCorkle v. Black, 7 Rich. 
Eq. (S. C.) 407; Haralson v. Redd, 15 Geo. 148 ; Cook v. Walker, lb. 457.] 



Title XXXVIII. Devise. Ch. XIII. s. 2—4. 323 

2. A person devised' to his eldest son for life, remainder to the 
sons of his body lawfully begotten, and if they aliened, that his 
daughters should have the same estate, remainder to his right 
heirs. It was resolved that the eldest son had but an estate for 
life, and that his son should have it by purchase ; because it was 
expressly limited that he should have it only for life, (a) 1 

* Lord Hale says, the words in this case were ; " to his * 255 
eldest son for life, et non aliter," and that it was held to be 
an estate for life by reason of the words non aliter. (b) 

3. A person devised his estate to trustees and their heirs, in 
trust for Popham for life, remainder to his first and other sons 
successively in tail male ; " and for want of issue male of Pop- 
ham" to another person. Afterwards the testator by a codicil, 
reciting that he had by his will given the premises to Popham 
and the heirs male of his body, willed that if the estate should 
determine, and Popham should die without issue male, then his 
estate to be disposed of in a particular manner, (c) 

The questions were, I. Whether the words of the will, viz. 
"for want of issue male of Popham" did not by implication give 
an estate tail to Popham. II. Whether admitting the words in 
the will did not give an estate tail, the codicil, reciting that the 
testator had by his will devised the premises to Popham and the 
heirs male of his body, would not so far influence and explain 
the will, as to make it an estate tail, though it was not so before. 

It was resolved unanimously that Popham had only an estate 
for life by the will ; and that the same was not enlarged or 
altered by the codicil ; for there being an express estate given to 
Popham for life, with remainder to his first and every other son, 
&c, the words, " if Popham should die without issue male," 
should not enlarge his estate to an estate tail, in regard these 
amounted only to make an estate tail by implication ; and words of 
implication could never destroy what was before expressed ; so 
that the words, if he should die without issue male, could mean 
no more than if he should die without sons. 

4. A testator devised all his freehold estates to trustees, in 
trust to convey the same to Ewer Edgley for life, remainder to 

(a) 1 Roll. Ab. 837, pi. 13. (b) 1 Vent. 231. (c) Bamfield «. Popham, 1 P. Wms. 54. 

1 See also Den v. Crawford, 3 Halst. 90 ; Bennett v. Morris, 5 Rawle, 9 ; Findlay 
v. Riddle, 3 Binn. 139 ; Smith v. Carr, 1 Hen. & Munf. 240 ; In re Sanders, 4 Paige, 
293. 



324 Title XXXVIII. Devise. Ch. XIII. s, 4—5. 

trustees during his life to preserve contingent remainders, re- 
mainder to his first and other sons in tail male ; remainder to his 
daughters in tail general, as tenants in common ; with power to 
E. Edgley to make a jointure ; and if he should die without 
issue, then he devised the premises over, (a) 

It was contended that E. Edgley, by virtue of the words, " if 
he die without issue of his body," should have an estate tail in 
the premises ; to which it was answered, that here was an ex- 
press estate for life limited to E. Edgley, and the words, 
256 * " if he * should die without issue," being only words of im- 
plication, would not merge and destroy an express estate 
for life. 

The Court exploded the notion that words of implication should 
not turn an express estate for life into an estate tail ; and said 
that if I devise an estate to A for life, and after his death with- 
out issue, then to B, this will give an estate tail to A, according 
to Sonday's case ; but here being a limitation, upon E. Edgley's 
death, to his sons, and after to his daughters, the following 
words, — if E. Edgley should die without issue, — must be in- 
tended, if he should die without such issue. And as to what 
had been urged, that unless these words were to create an estate 
tail in E. Edgley, his son's daughters could not take ; it did not 
appear that the testator intended E. Edgley's son's daughters 
should take, for he might think that on E. Edgley's dying with- 
out issue, his name and family would be determined ; for which 
reason he might limit it over to the daughters of E. Edgley 
himself. Besides, the son of E. Edgley would be tenant in tail, 
and when of age might, by docking the entail, give the premises 
to his daughters, (ft) 

5. Although a devise to a person generally, with a power to 
give and dispose of the estate devised as he pleases, creates an 
estate in fee simple ; yet where an estate is devised to a person 
expressly for life, with a power of disposal, the devisee will only 
take an estate for life, with a power to dispose of the rever- 
sion. (c) 1 

(a) Blaokborn v. Edgley, 1 P. Wms. 600. (6) Ante, u. 12. 

(c) Ch. 11, s. 10. (Stevens v. Winship, 1 Pick. 318, Jackson v. Robins, 16 Johns. 537. 
Armstrong v. Armstrong, 3 Am. Law Journ. 49, N. S. 



1 On the question, whether a devise of lands, "freely to be possessed and enjoyed," gives 



Title XXXVIII. Devise. Ch. XIII. s. 6—7. 325 

6. A person having two daughters, devised lands to his wife 
for life, and at her decease, she to give the same to whom she 
pleased. The wife granted the reversion to a stranger, and com- 
mitted waste ; the two daughters brought an action of waste, (a) 

It was held, that by the devise, the wife had but an estate for 
life, with an authority to give the reversion to whom she pleased ; 
and her grantee would be in by the will : for the testator had 
given his wife an express estate for life, and therefor^ she could 
not by implication have any greater estate : but if an express 
estate had not been given to the wife, by the other words, an 
estate in fee simple had passed, (b) 

7. J. Tomlinson devised lands to his wife for her life, and 
then to be at her disposal ; provided it was to any of his chil- 
dren, if living ; if not, to any of his kindred that his wife should 
please, (c) 

* It was resolved by the Court of K. B. upon a writ of * 257 
error from the C. B., that the wife had but an estate for 
life, with a power of disposing of the inheritance. And Lord 
Ch. J. Parker said, the difference was where a power was given 
with a particular description and limitation of the estate, as here, 

(a) Anon. 3 Leon. 71. 4 Leon. 41. 

(b) Daniel v. Upton, Noy, 80. (c) Tomlinson v. Dighton, 1 P. Wins. 149. 



a fee simple or only a life-estate, the decisions appear, at first view, to be conflicting. 
But by the weight of authority, it would seem, that the words are too uncertain, of 
themselves, to raise a fee, though they may be aided by other circumstances. See 
Wright v. Denn, 10 Wheat. 241-245 ; Wheaton v. Andress, 23 Wend. 452 ; Good- 
right v. Barron, 11 East, 220; Supra, ch. 11, § 10, 51, note. In Loveacres v. Blight,. 
Cowp. 352, in which they were held to pass a fee, there was the additional circum- 
stance of a charge on the estate. 

A devise to trustees to sell, and pay the annual income to A, during her life ; held a 
good devise during the life of A. Young v. Grove, 4 M. G. & S. 668. [A devise to a 
son, " of the land he is now in possession of, to him during his natural life, to improve, 
and then to his heirs after him, for their sole right," was held to create an estate for 
life, there being no evidence in the rest of the will of an intention to give an estate of 
inheritance. Pratt v. Leadbetter, 38 Maine, (3 Heath,) 9. See also Fay a. Eay, 1. 
Cush. 93. 

A testator devised and bequeathed to his wife for her life, the interest or rent of his 
house, and all his other goods and effects whatsoever, and after the death of his wife, he 
gave and bequeathed the house and all his goods and effects to his four children, to be 
equally divided between them. Held, that the children took an estate for life only in 
the house. Harding v. Roberts, 29 Eng. Law and Eq. 451. See also Eairman v. Beal, 
14 111. 244.] 

VOL. III. 28 



326 Title XXXVIII. Devise. Ch. XIII. s. 7—8. 

and where generally, as to executors, to give or sell ; for in the 
former case the estate limited being express and certain, the 
power was a distinct gift, and came in by way of addition ; but 
in the latter, the whole was general and indefinite ; and as the 
persons intrusted were to convey a fee, they must consequently, 
and by a necessary construction, be supposed to have a fee them- 
selves, (a) 

8. John Russell by his will gave a legacy of £1,000 to his son * 
Richard, and an estate in fee to a nephew ; and then directed 
his executrix to lay out £2,000 of his personal property in the 
purchase of freehold estates, within twelve months after his 
decease. The estate so to be purchased, together with four mes- 
suages in Johnson's-court, Fleet-street, and elsewhere, and the 
reversion of others, (describing them all,) and all his leasehold 
estates, he gave to his wife Rebecca, for her life, and from and 
immediately after her decease, to his son Richard and his issue 
lawfully begotten, or to be begotten, to be divided among them 
as he should think fit ; and in case he should die without issue, 
he directed that all, as well his present freehold and leasehold, 
as the estates directed to be purchased, should be sold, and the 
money arising from the sale should be divided among the chil- 
dren of his brother Russell, and of his sisters Willis and Parks, 
equally. There was a subsequent direction that no part either 
of his present freehold and leasehold, or of the estate so directed 
to be purchased, should be sold during the lives of his wife and 
son. All the rest, residue, and remainder of his property and 
effects whatsoever and wheresoever, after payment of debts, lega- 
cies, and funeral expenses, he gave to his wife for her own use 
and benefit, forever, and appointed her his sole executrix. The 
wife enjoyed under the will for her life, and after her death the 
son enjoyed for his life, and died without having had issue, (b) 

Upon a suit in Chancery to establish the will, one of the ques- 
tions was, whether Richard Russell, the son, took an estate tail, or 
for life only, under the will. 

Lord Thurlow said, it was clear to him that the testator in- 
tended, and he thought had pretty plainly expressed, a* con- 
258 * tingency, * with a double aspect : in one case, to the chil- 
dren of the son ; in the other, to the other persons pointed 

(a) Hoarle v. Greenbank, tit. 32, c. 13, S. P. (i) Hockley v. Mawbey, 1 Vee. 143. 



Title XXXVIII. Devise. Ch. XIII. s. 8. 327 

out : to the children of the son in one way, to the other parties in 
another, viz., by settling it so as to distribute it among the great 
numbers of persons who might come within that description. 
The limitation to the son and his issue would be an estate tail, 
and perhaps the aptest way of describing an estate tail according 
to the statute ; but it was clear he did not intend it to go to them 
as heirs in tail, for he meant they should take distributively, and 
according to proportions, to be fixed by the son. It had often 
been decided, in other cases besides those mentioned at the bar, 
that where there was a gift in that way, the parties must take as 
purchasers, for there was no other way for them to take. The 
immediate consequence of this was, that Richard Russell could 
only take for life; and the consequence of that was, that this 
was a gift to the wife for life, then to the son for life, and after 
to his issue, in such distributive shares as he should appoint. 
It was then said that this might be interpreted to be a gift to the 
son in tail, with a power annexed to raise a future use upon it, of 
the description mentioned. As to that, he apprehended that in 
case there had been children of the son, it was not intended to 
be left in his power to determine whether he should or should 
not consider it as his own, and raise a future use if he pleased ; 
but the disposition gave an interest to his children, and a title to 
insist upon an estate in the premises so given, at all events ; and 
then the son had no authority, but as to the proportions in which 
they were to take ; but not to choose whether any thing should 
be given to them or not. Then the effect was like all other gifts 
to persons in remainder capable of being divided, but if not, 
equally ; and that was the necessary consequence of the suppo- 
sition he mentioned before, that he intended to vest an interest 
in the children of his son, independently of the son, except as 
to the proportions ; and that even so as that they should not be 
illusory. It was observed that the word " issue " would extend to 
grandchildren or any other degree of kindred, however remote ; 
he thought it would be so, but only in this point of view, as a 
description of the objects among whom the power of the son 
was to obtain, to make such partition as he should think fit ; and 
whosoever they were, they must be in existence during the life 
of the son, and he must have made it during his life; if 
so, it was of no consequence how they were described ; for if 



328 Title XXXVIII. Devise. Ch. XIII. s. 8—10. 

259 * it vested * in him, it was of no consequence to say they 
were not the immediate descendants of the son. It was 
an estate devised upon two alternative contingencies ; one, that 
there were objects capable of taking under the first limitation ; 
another, that there were none such, but that there were objects 
capable of taking under the second. As to its being an estate 
tail by implication, it was contrary to reason and to common 
sense to impute that intention to him, if only arising from his 
not having made a special devise of the estate in that form. 
The estate he was directing to be sold, and the estate supposed 
to be given to the son in tail, were the same ; and if so given, it 
•could not be sold by this power, and did not come within the 
range of what he had before directed ; it was plain, therefore, he 
did not intend an estate tail; and he was himself clear upon 
that point. Decreed an estate for life, (a) 

9. Where no words of limitation are added to a devise, and 
there are no other words from which an intention to give an 
estate of inheritance can be collected, the devisee will take only 
an estate for life. l 

10. If a man devise in this manner : — "I devise Blackacre to 
my daughter F. and the heirs of her body begotten. Item, I 
devise unto my said daughter Whiteacre." The daughter shall 
have but an estate for life in "Whiteacre ; for the word item is not 
so much as in the same manner. But if a person devise Black- 
acre to one in tail, and also Whiteacre, the devisee shall have 
an estate tail in Whiteacre also ; for this is all one sentence, 

(a) Reid i>. Shergold, 10 Ves. 370. 



1 In most of the United States, a devise, without words of limitation, or declaration 
of a different intent, conveys all the interest which the testator had in the premises. 
See supra, ch. 11, § 2, note. 

A devise of " all the rest of my lands" without other words, or any other devise of 
real estate, was held to convey only an estate for life. Wright v. Denn, 10 Wheat. 
204, 232-239. 

The rule in the text is recognized in Cook v. Holmes, 11 Mass. 528; Wright v. 
Denn, supra; Steele o. Thompson, 14 S. & R. 84; Barnett v. Barnett, 15 S. & R. 72; 
Jackson v. Wells, 9 Johns. 222 ; Jackson v. Embler, 14 Johns. 198; Hall v. Goodwyn, 
1 N. & McC. 383 ; Witherspoon v. Dunlap, 1 McC. 546 ; Clayton v. Clayton, 3 Binn. 
476 ; Jackson v. Bull, 10 Johns. 148. [See also, Wight v. Baury, 7 Cush. 105 ; Eeeder 
v. Spearman, 6 Rich. Eq. (S. C.) 88.] 



Title XXXVIII. Devise. Ch. XIII s. 10—13. 329 

and so the words which make the limitation of the estate go to 
both, (a) 

11. A person devised in these words : — "I give and bequeath 
to H. my farm and lands at E,., to him, his heirs and assigns for- 
ever. And I also give and bequeath to the said H. my farm and 
manor of E." (6) 

Lord Eldon said, the only question upon this devise was, 
whether the word also had precisely the same operation as the 
addition of the words, his heirs and assigns forever, in the devise 
of the other estate immediately preceding ; and it seemed to him 
that all the old rules against disinheriting an heir, except by plain 
words or necessary implication, were gone, if such a construction 
was to prevail. Decreed an estate for life. 1 

12. One Hawkins being seised in fee of three houses, devised 
them to his wife for life, the remainder of one to Robert, his son 
and his heirs, the remainder of another to Christian, his 
daughter * and her heirs, and of the third to Joan, his * 260 
daughter and her heirs ; and did further will, that if any 

of them died without issue, then the survivors should enjoy 
totam illam partem, equally divided between them, (c) 

It was resolved, that the survivor only took an estate for life 
in the share of the others. 2 

13. A person having three sons, B, C, and D, devised lands 
to B, in tail, remainder to C, in fee, and other lands to C, in tail, 
remainder to D, in tail ; and then other lands to D, in fee. He 
afterwards said, " Item, I give Blackacre to my said son D ; 
item, I give to my said son D, Whiteacre. Also I will that all 
bargains, grants, &c, which I have from J. S. my son D shall 
enjoy, and his heirs forever ; and for lack of heirs of his body, 
to my son C, forever." (d) 

(a) 1 Roll. Ab. 844. 1 Mod. 100. (Conoway v. Piper, 3 Harringt. 482.) 

(b) Paice v. Arohb. of Canterbury, 14 Ves. 364. 

(c) Pettywood v. Cooke, Cro. Eliz. 52. 2 Leon. 129. 

(d) Spirt v. Benoe, Cro. Car. 368. Vaugh. 262. 



*In this case, there was a residuary devise ; and it does not appear in the' report, 
that H. was the testator's heir. 

2 This case was doubted by Ld. Ellenborough, in Bebb v. Penoyre, 11 East, 163. 
And see Paris v. Miller, 5 M. & S. 408 j Doe v. Fawcett, 3 Man. Gr. & So. 283. 

28* 



330 Title XXXVIII. Devise. Ch. XIII. s. 13—17. 

It was agreed by all the Judges, that the bargains and grants, 
&c. only were entailed ; and that D had but an estate for life in 
Blaekacre and Whiteacre. 

14. A person devised a house to his sons James and Thomas, 
and the heirs of their bodies, in equal moieties ; and theii added, 
" but my will and mind is, that if any of my said children shall 
die before twenty-one, or unmarried, the part or share of him or 
her so dying shall go over to the survivors." (a) 

Lord Holt was of opinion, that Thomas, dying unmarried, his 
moiety went over to the survivor, and that by the devise over, 
only an estate for life passed, (b) 

15. A person devised a copyhold estate to his daughter Jane, 
her heirs and assigns for ever; but in case his said daughter died 
before she attained the age of twenty-one years, and had no 
issue, then his will was, that his nephew, J. Hardisty, should have 
his said copyhold lands and tenements, (c) 

The Court was clearly of opinion, that J. Hardisty took only 
an estate for life : that the testator by his devise to Jane plainly 
understood the force of words of limitation ; and if he had in- 
tended to give his nephew more than an estate for life, he knew 
how to have done it : that there were no express words in the 
will that gave the nephew a fee, nor any manifest intention to do 
so, or to disinherit the heir at law. 

16. A will began with these words : — " As touching the dis- 
position of such temporal estate as it has pleased God to bestow 

on me." And then the testator proceeded to give his 
261 * to * his son, S. Russell, and after his death then to the 

two sons of Samuel, named Thomas and William ; and 
gave a legacy of one shilling to the husband of his heir at 
law. (d) 

It was resolved by the Court of Exchequer, that Thomas and 
William took only estates for life. 

17. B. C. being seised and possessed of freehold and leasehold 
property, lying contiguous, and demised together, devised to his 
wife all his freehold and leasehold messuages, &c. and all his 
estate and interest therein, for and during her natural life ; and 
•after her decease he devised the said messuages to his sisters-in- 

(a) Woodward v. Glasbrook, 2 Vern. 888. (6) Cook v. Cook, ante, o. 10. 

4.C) Roe v. Holmes, 2 Wils. E. 80. (<Z) Eight v. Eussell, cited 2 Dong. 761. 



Title XXXVIII. Devise. Ch. XIII. s. 17—19.. 331 

law, M. S. and M. B., as tenants in common ; but in case his 
mother should give any disturbance to his wife, then his will was, 
that the same should go to his kinsman W. B., his heirs and 
assigns forever ; and charged his estate with the payment of all 
his just debts, to be paid out of the yearly rents of his estate by 
his said wife, (a) 

Lord Mansfield said, there were no words of limitation added 
to this devise to the sisters-in-law ; and therefore it was clear, by 
the rule of law, that it was only an estate for life ; unless it could 
be found from the whole of the will taken together, and applied 
to the subject-matter of this devise, that the testator's intention 
was to give a fee. 

Judgment that the sisters-in-law took only an estate for life. 

18. A person devised all his real and personal estate to his wife 
for her natural life, and at or immediately after her decease, he 
gave his son Paul all that his land lying and being in Dudley, and 
gave to each of his grandchildren (one of whom was his heir at 
law) a legacy of five shillings, (b) 

The Court was of opinion, that Paul took only an estate for 
life. 

19. John Gaskin began his will thus : " As to all such worldly 
estate as God has endued me with." He then gave all that 
his freehold messuage and tenement lying in G. to his three 
nephews, equally to them ; and gave ten shillings to his heir at 
law. (c) 

Lord Mansfield said, it was settled in devises, as well as in 
deeds, that if no words of limitation were added, the devisee 
could only take an estate for life, because the law implied an 
estate for life only, where there were no words' of limitation : but 
as there were no technical words necessary in a will, if the tes- 
tator made use of what was tantamount, as if he said, I 
give to * such a one in fee simple, or all my estate, that * 262 
would carry all his interest in the land devised. But 
there must be words in the will to control the rule of law, which 
he believed in a variety of cases thwarted the intention of the 
testator. He suspected extremely, that in this very case the testa- 
tor meant to give his nephews a fee in the premises in question ; 

(a) Eoe v. Blackett, Cowp. 235. 

(4) Eoe v. Bolton, 2 Black. K. 1045. 2 Doug. 761. (c) Denn v. Gaskin, Cowp. 657. 



332 Title XXXVIII. Devise. Ch. XIII. s. 19—20. 

for he had no other landed property. He made them residuary - 
legatees of his personalty, and gave a disinheriting legacy to his 
heir at law, agreeable to the vulgar notion taken from the Ro- 
man law, that an heir is cut off with a shilling. But the single 
question was, whether the Court cotdd find any words in the 
will to take this case out of the rule of law ; if they could not, it 
must be adhered to. He said it was impossible to find words in 
this will sufficient to control the rule of law. There were no 
words that could connect the devise of the lands in question 
with the introduction, so as to pass the whole interest ; therefore 
the devisees could only take an estate for life. Judgment was 
given accordingly. 

20. W. Sparrowhawk devised as follows : — " For those worldly 
goods and estates wherewith it has pleased God to bless me, I 
give and dispose of the same in manner following." Then 
gave one shilling to his heir at law ; and after giving other legacies, 
came this clause — " And I do give and devise unto Susan my 
said wife, her heirs and assigns forever, all my lands lying in the 
parish of A. And I give and bequeath to my loving wife afore- 
said all my lands, tenements and houses lying in the parish of 
Chipping Norton." The question was, whether the last-men- 
tioned premises were devised to the widow in fee, or for life, (a) 
Lord Mansfield. — " I verily believe that almost in every case 
where by law a general devise of lands is reduced to an estate 
for life, the intent of the testator is thwarted ; for ordinary people 
do not distinguish between real and personal property. The rule 
of law, however, is established and certain, that express words 
of limitation, or words tantamount, are necessary to pass an 
estate of inheritance. All my estate, or all my interest, will do ; 
but all my lands lying in such a place is not sufficient ; such 
words are considered merely as descriptive of the local situation, 
and only carry an estate for life ; nor are words sufficient to dis- 
inherit the heir at law sufficient to prevent his taking, unless the 

estate is given to somebody else. I have no doubt but 
263 * the testator's * intention here was to disinherit his heir at 

law, as well as in the case of Denn v. Gaskin. But the 
only circumstance of difference between that case and this, and 

(a) Right v. Sidebotham, 2 Dong. 759. [Pocock v. Bp. of Lincoln, 3 Br. & Bing. 27. 
Doe v. Gwillim, 6 B. & Adol. 122.] 



Title XXXVIII. Devise. Ch. XIII. s. 20—21. 333 

which has been relied on as in favor of the defendants, if the 
testator had any meaning by it, (which I do not believe he had,) 
rather turns the other way, because he uses different words in 
devising different parts of his estate. I think we are bound by 
the case of Denn v. Gaskin." Judgment that the widow took 
only a life-estate in the last-mentioned premises, (a) 

21. T. Nash devised lands to S. Nash for life, remainder to 
trustees to preserve contingent remainders ; remainder to the 
first and other sons of S. Nash, and the heirs male of his and 
their bodies ; and for default of such issue, to the use and behoof 
of all and every the daughter and daughters of the body of the 
said T. Nash ; and for default of such issue, to the use of the 
right heirs of the said T. Nash forever. T. Nash had a daughter 
named Jane ; and the question was, whether she took an estate 
for life or an estate tail, (b) 

Lord Mansfield. — " This question does not admit of much 
argument, nor of cases to be cited ; for every case must depend 
upon its own circumstances. The rule of law is clear, that a 
grant by words of purchase without further limitation, enures 
for life only. When wills came to be in vogue, it pleased the 
Judges to consider them in their construction, with analogy to 
rules of law respecting deeds, and not with analogy to the Ijfco- 
man appointment ; and therefore they held that such a grant 
enured for life only. There is hardly an instance where the 
words of a devise are restrained to a life-estate only, in which 
the intention of the testator is not contravened ; for common men 
are ignorant of the difference between land and money. This 
being so, the Courts have been astute to find out, if possible, 
from other parts of the will, the intention of the testator ; the 
question then is, whether there be enough here, on the face of 
the will, for we must not go into conjecture. I conjecture that 
this was a blunder, and that another limitation was intended, 
but I do not know of what nature, whether to heirs general or 
special. Is there then any authority for supplying the defect, 
and making the will anew ? Had the words been, if they die 
without issue, an estate tail would have been implied ; but here 
the words are, for default of such issue, namely, that issue 

(a) Ante, s. 19. (I) Denn v. Page, cited 1 Bos. & Pul. 261. 11 East, 603. 



334 Title XXXVIII. Devise. Ch. XIII. s. 21—22. 

264* which is before mentioned. *The Court has no power 
to strike out the word such; and if they did, what are 
they to supply it with ? are they to give an estate in tail general 
or in tail male ? There is no intention therefore apparent on the 
will to direct the Court." 

Judgment, that Jane took only an estate for life. 

22. Sir R. Worsley being seised in fee of the premises in 
question, devised them to trustees, upon trust that they should 
stand seised thereof to the use of his grandson, the Earl of Gran- 
ville, for life, remainder to his first and other sons in tail male ; 
remainder to Lady Carteret for life ; remainder to the first and 
other sons in tail male ; and in default of such issue, "to the use 
of all and every the daughter and daughters of the body of the 
said Lady Carteret lawfully issuing, as tenants in common, and 
not as joint tenants ; and in default of such issue, to the use and 
behoof of his own right heirs forever." (a) 

Lady Carteret had one daughter, Lady Catherine Hay; and 
the question was, "What estate she took under this devise ? 

A case was sent out of Chancery to the Court of K. B. for 
their opinion. 

Lord Kenyon. — " The general rule which is laid down in the 
books, and on which alone courts can with any safety proceed in 
the decision of questions of this kind, is, to collect the testator's 
intention from the words he has used in his will, and not from 
conjecture. It is not necessary that any technical or artificial 
form of words should be used in a will ; but we must collect 
the meaning of the testator from those words which he has used, 
and cannot add words which he has not used. The objection 
then occurs in this case, voluit sed non dixit. The plaintiff's 
argument goes to show that the daughters took estates, in tail 
general ; but that could not have been the intention of the de- 
visor, as no such estate is given in any part of the will, and the 
devisor has totally laid aside the daughters of the first devisee, 
and the daughters of his sons. The words here used, technically 
considered, only confer an estate for life on Lady C. Hay. 
It has been argued that we may presume an intention in the 
devisor, from other parts of the will, to give estates in succes- 

(o) Hay v. Coventry, 3 Term E. 83. 



Title XXXVIII. Devise. Ch. XIII. 5. 22—24. 335 

sion to the daughters ; but I cannot find any words in the will 
to warrant such a construction. If, indeed, the word such had 
not been introduced in this clause, we might perhaps have 
said that as issue is genus generalissimum, it should 
include all *the progeny; but here the word such is rela- *265 
tive, and restrains the words which accompany it. The 
case is precisely similar to that of Denn v. Page : there the 
Court held that sufficient did not appear on the face of the will 
to warrant them in saying that an estate of inheritance was 
given to the daughter ; that if it were left to conjecture, they 
might suppose that some mistake had been made in the limita- 
tion ; but they could not determine on conjecture, nor put that 
in the devisor's mouth which he had not said." (a) 

The certificate was, that Lady Catherine Hay took only an 
estate for life. 

23. A person devised his estate to trustees and their heirs, 
until his nephew Thomas Foster should attain the age of twenty- 
one years, or die : and on his attaining twenty-one, to the said 
Thomas for life ; and after the determination of that estate, to 
the trustees, to preserve contingent remainders ; and after the 
decease of Thomas, to all and every the son and sons of the body 
of Thomas, severally, and successively one after another in 
priority of birth, &c. ; and for default of such issue, to the trus- 
tees, until another nephew should attain twenty-one, and then to 
him in the same manner, (b) 

Upon a case sent out of Chancery for the opinion of the Court 
of K. B., as to what estate Thomas Foster the nephew, and his 
eldest son took ; that Court certified that they respectively took 
estates for life only. 

24. Lord Mulgrave having an only daughter, and three broth- 
ers, devised his estate in trust for his first and every other son in 
tail male ; " failure of such issue, to my brother Henry, and his 
first and every -other son in tail male ; " and so on to his two 
other brothers in the same words, and then to his daughter in 
the same manner *, and concluded with these words, " in all the 
foregoing cases without impeachment of waste, other than wil- 
ful." Then after making a provision for his daughter to the 

(a) Ante, s. 21. Doe v. Vaughan and Walker, 5 B. & Aid. 464. 
(4) Foster v. Komney, 11 East, 594. 



336 Title XXXVIII. Devise. Ch. XIII. s. 24—25. 

amount of £20,000, the will proceeded thus : " My will is, that 
the money lodged at Childs, to pay for the purchase of the Lyth 
rectory be applied to that purchase, as soon as Sir J. Sheffield 
can complete the title ; and the renewals to be made by the ten- 
ant for life." It appears that Sir J. Sheffield held the rectory of 
Lyth for three lives, under the see of Canterbury, (a) 

Lord Kenyon. — " The words 'first and every other son, . 
266 * children} * or ' heir,' may be taken to be words of limita- 
tion, where it is necessary to give them that construction 
in order to effectuate the intention of the testator, as in Robinson 
v. Hicks, though ordinarily speaking they are words of pur- 
chase : but in this case no doubt can be entertained respecting 
the devisor's intent. First he devised to his own first and every 
other son in tail male, and if he had no issue, then to his brother 
Henry and his first and every other son in tail male, &c. Now, 
if he had given instructions to a conveyancer to draw his will, 
and to make his brothers tenants for life, and their children ten- 
ants in tail, these are precisely the terms in which he would have 
given such instructions : and in construing wills we must take 
into consideration the short hints of the devisor, in order to dis- 
cover his intention. To be sure, if the objection, voluit sed non 
dixit, had occurred, it could not have been got over ; we could 
not have inserted words in a will whioh would have varied the 
construction of those used, even if we thought that the devisor 
had intended to have used them ; but here the intention is suffi- 
ciently explained by the words which he has used ; and great weight 
is also due to the subsequent words, which direct the renewal of 
the life-estate to be made by the tenant for life ; for they can 
only apply to the devisor's brothers, since there was no other per- 
son who could take a life-estate under the will. In some of the 
cases, indeed, nice distinctions have been made, to whom the 
word heirs should be applied ; but without entering into those 
niceties, because it is unnecessary in this case, where the devi- 
sor's intention may be collected from different parts of the will, I 
am clearly of opinion that, on the fair construction of the will, 
the present Lord Mulgrave only took a life-estate, with remain- 
der in tail to his issue." (b) 

25. [In Doe dem. Liversage v. Vaughan, the devise was to the 

(a) Doe v. Mulgrave, 5 Term R. 320. (6) Ante, u. 12, o. 50. 



Title XXXVHI. Devise. Gh. XIII. s. 25—29. 337 

testator's nephew, J. L., for life, and after his death to all and 
every the child and children of J. L. lawfully begotten or to be 
begotten, if more than one, as tenants in common, in equal 
shares, and for want of such issue to the testator's own right 
heirs. The Court of King's Bench decided, that J. L. took only 
for life, and after his death that his children took only estates 
for life as tenants in common, (a) 

26. The later case of Parr v. Swindels very closely resembles 
the preceding, and received a similar decision, (b) 

*27. In a more recent case the testator had bought the *267 
fee simple of a set of chambers in Albany, for 600 guin- 
eas, and being so seised, devised them by codicil to the Honora- 
ble Thomas Stapleton, in the following words : " I also bequeath 
to him my chambers in Albany, for which I paid 600 guineas, 
with all my furniture, except such articles as I may particularly 
except from this donation." The Court of K. B. held that the 
devisee took only a life estate.J (c) 

28. It. has been stated that a devise to a person, without any 
words of limitation, charged with the payment of a gross sum 
of money, or of debts or annuities, creates an estate in fee sim- 
ple. 1 But it is laid down in Collier's case, that a devise to a per- 
son to the intent that with the profits he should educate his 
daughter, or out of the profits of the land pay to one so much, 
and to another so much, was but an estate for life ; for he was 
sure to have no loss, (d) 

29. W. Lock being seised in fee, and having several sons, and 
being bound in an obligation that £40 should be paid annually 
to his wife during her life, made his will, and thereby devised all 
his lands, by several clauses, to his several sons ; and amongst 

(a) 5 Bar. & Aid. 464. (b) i Russ. 283. 

(c) Doe dem. Sewell v. Parratt, 3 Bar. & Adol. 469. Doe d. Norris v. Tucker, lb. 473. 
(3) 6 Kep. 16, a. 



1 See ante, ch. 11, § 68, notes. If the charge is on the person of the devisee, the 
estate is enlarged into a fee ; but if it is on the land only, it is an estate for life. See 
Denn v. Mellor, infra, § 33 ; Jackson v. Bull, 10 Johns. 148 ; Van Alstyne v. Spraker, 
13 Wend. 578. 

But where the devise was to A., on condition that he should serve the testatrix as 
a coachman, so long as she should require, which condition was unknown to the 
devisee during her life, it was held, that he took,onlyan estate for life. Farrar v. 
Ayres, 5 Pick. 404. 

vol. in. 29 



338 Title XXXVIII. Devise. Ch. XIII. s. 29—32. 

others, he devised the lands in question to his sons Michael and 
Henry ; and added this clause : " Item, all the houses and lands 
which I have given between my sons, is to this purpose, that 
they all shall bear part and part alike, going out of all my houses 
and lands, towards the payment of my wife's £40 per annum 
during her life, which I am bound to pay." (a) 

The Court resolved that an estate for life only passed by this 
devise, for it was not devised, paying a sum in gross, but that 
every one should pay out of his part towards the £40 to his wife ; 
which was quasi an annual rent out of the profits of the land, 
and no sum in gross ; and therefore no fee was given. 

30. J. Toby devised all his lands and goods, after his debts 
and legacies paid, to his children, R. and M. Toby, equally to be 
divided between them, (b) 

The Court resolved that only an estate for life passed ; for 
although in the devise the lands and goods were coupled together, ' 
and it was a devise forever of the goods ; yet for the land, there 
being no words to give the inheritance, only an estate for life 
passed. And although it was objected that the devise of the 
lands was, after his debts and legacies paid, yet that did not 

enlarge it. 
268* *31. A person gave all his lands, tenements, and mes- 
suages whatsoever, after debts and legacies paid, and 
funeral expenses were discharged, to J. M. (c) 

It was said by Mr. Fortescue, M. E,., that where a gross sum 
was to be paid out of the lands devised, it gave a fee to the dev- 
isee of those lands ; but here the debts were not at all events 
charged upon the real estate, but only contingently, if the per- 
sonal estate should be deficient ; and therefore did not come up 
to the cases cited of a gross sum to be paid out of land : and 
consequently gave no more than an estate for life to the devisee. 

32. It has been laid down in two modern cases, that Where ' 
the payment of a gross sum of money, or of debts and legacies, 
is charged on the estate devised, and not on the devisee, such a 
charge will not operate so as to give the devisee an estate in fee; 
and therefore, if no words of limitation are added, he will take 
no more than an estate for life. 

(a) Ansley v. Chapman, Cro. Car. 157. (6) Dickens v. Marsha], Cro. Eliz. 330. 

(c) Merson v. Blackmore, 2 Atk. 341. (Jackson v. Harris, 8 Johns. 141, 146.) 



Title XXXVIII. Devise. Ch. XIII. s. 33. 339 

33. A person devised as follow^: — " I give and devise unto 
N. Lister all that my customary estate, &c. All the rest of my 
lands, tenements, and hereditaments, either freehold, or copyholdj 
whatsoever, and wheresoever ; and also all my goods, chattels, 
and personal estate, of what nature or kind soever, after payment 
of my just debts and funeral expenses, I give, devise, and be- 
queath the same unto my wife Sissily Carr ; " and appointed her 
sole executrix, (a) 

The question was, whether Sissily Carr took an estate in fee, 
or only for life. 

Lord Kenyon said, where a devisee is directed to pay an 
annual rent-charge or a solid sum to another person, out of the 
estate devised, it had been properly decided that the devisee 
should take a fee, because he might be a loser unless the estate 
in his hands were at all events sufficient to enable him to bear 
those charges. Where a sum of money was given, it might be 
payable before the r§hts became due ; and where an annual 
charge was made on the estate, it might continue beyond the 
life of the devisee ; and therefore it was necessary in both those 
cases that the devisee should have a permanent fund. That this 
case had been compared to that of Doe v. Richards ; but there 
the words were, my legacies and funeral expenses being thereQut 
paid ; Which imported that those sums were to be paid by the 
devisee out of the interest given to her ; and if she had 
died immediately * after the devisor, and had only taken * 269 
a life-estate, the fund out of which she was to bear those 
charges which might have failed ; the Court was therefore com- 
pelled to make that decision, and he was now perfectly satisfied 
with it. But in this case the words of the will were, '? after 
payment of my just debts and funeral expenses" Now supposing 
the devisor had, in the beginning of the will, charged his debts 
and funeral expenses on his real estate, and had then, after a 
series of limitations, devised to his wife in the words here used ; 
it could not have been contended that such a charge on the real 
estate would have passed the fee to his wife : and if not, the 
place in which the same words were introduced could not vary 
the question. He admitted that the real estate was charged with 
the payment of debts and funeral expenses, if the personalty 

(a) Denn v. Mellor, 5 Term B. B68. 



340 Title XXXVIII. Devise. Ch. XIII. s. 33—35. 

was not sufficient for that purpose ; but there were no words, 
charging the estate in the hands of the wife with the payment 
of those debts. This, therefore, essentially differed the present 
case from that of Doe v. Richards ; for there the debts were to 
be paid by the devisee, and were a charge on the estate in his 
hands ; whereas, here, the debts were no charge on the devisee, (a) 

Judgment was given that Sissily Carr took only an estate for 
life. 

On a writ of error in the Exchequer Chamber, this judgment 
was reversed, upon the ground that the words, all the rest of the 
real estate, created an estate in fee. (6) 

A writ of error was then brought into the House of Lords, 
where the following question was put to the Judges: What 
estate the devisee, Sissily Carr, took in the premises in question? 
to which the Lord Ch. B. of the Exchequer delivered their unan- 
imous opinion, that Sissily Carr took an estate for life; where- 
upon the judgment of the Court of Exqfcequer Chamber was 
reversed, and that of the Court of King's Bench affirmed, (c) 

34. Previous to the hearing of this case in the House of Lords, 
the following case was determined by the Court of K. B., in 
conformity to the doctrine laid down by that Court in the pre- 
ceding ease. 

35. A person made his will in these words : " As to what real 
and personal estate it hath pleased Almighty God to bless me 
with, I give and dispose of the same as followeth : first, my will 

is that all my debts and funeral expenses be justly paid off 
270 * and discharged * out of my personal estate ; and if the 
same shall fall short, I do hereby charge my real estate 
with the payment of the same. I do hereby give and devise all 
my messuages, lands, tenements, and hereditaments whatsoever, 
situate, lying and being, &c.,unto W. Allen." And the question 
was, what estate passed by these words, (d) 

Lord Kenyon said, that the debts were not at all events 
charged upon the real estate, but only contingently, if the per- 
sonal estate should not be sufficient, and therefore did not come 
up to the cases cited, of a gross sum to be paid out of the land 

(a) Ante, o. 11, § 68. 

(J) 1 Bos. & Pul. 558. (See 10 Johns. 152, per Kent, C. J.) 

(c) 7 Bro. Pari. Ca. 607. 2 Bos. & Pul. 247. 

(d) Doe v. Allen, 8 Term K. 497. (Jackson v. Harris, 8 Johns. 141, 146.) 



Title XXXVIII. Devise. Ch. XIII. s. 35—40. 341 

devised, and consequently the words gave no more than an estate 
for life to the devisee. Judgment was given accordingly. J 

36. It has been stated, in a former chapter, that a devise of 
land charged with an annual payment to a third person for life, 
creates an estate in fee simple ; but it is otherwise where the 
annual payment is only to continue during the life of the person 
to whom the land is devised. 

37. A person devised lands to D. his wife, yielding and pay- 
ing therefor yearly, during her natural life, to the right heirs of 
his father, forty shillings, &c. (a) 

The Court was of opinion that D. took only an estate for 
life. 

38. It has also been already stated that the word " estate " 
will create a fee simple, when it appears to have been used by a 
testator to denote all his interest in the lands devised ; but where 
it appears to have been used as merely descriptive of the local 
situation of the lands devised, it will then pass no more than an 
estate for life, (b) 

39. Upon an appeal to the King, in Council, from a decree 
made in the Island of Antigua, the case was : A person having 
real and personal estate, gave and bequeathed one third part of 
all his estate whatsoever to his wife Ann ; and devised to his 
son John, and to his heirs, two thirds of all his real and personal 
estate, (c) 

It was determined by Lord Ch. J. Raymond, Sir J. Jekyll, and 
Lord Ch. J. Eyre, that the wife took only an estate for life ; the 
word estate being rather a description of the thing itself, than of 
the testator's interest in it ; and by the next clause it appeared, 
that where the testator intended to give a fee, there he took care 
to add the word heirs to the word estate. 

* 40. A person having devised his estate to his nephew * 271 
Thomas Hutton and his heirs, added these words : — ' 

(a) Ager v. Pool, 3 Dyer, 371, t>. 

(b) Supra, ch. 11, s. 25. (Lambert v. Paine, 3 Craneh, 134, per Patterson, J.) 

(c) Chester v. Painter, 2 P. Wms. 335. 



i See also, Doe v. Baines, 2 C. M. & E. 23 ; 5 Tyr. 655 ; Doe v. Roberts, 7 M. & 
W. 382 ; Doe v. Wrighte, 2 B. & A. 710 ; Clarke v. Clarke, 1 C. & M. 39 ; 3 Tyr. 
120 ; Mackie v. Mackie, 9 Jar. 753. 

29* 



342 Title XXXVIII. Devise. Ch. XIII. s. 40. 

" And if my said nephew shall have no issue male, then my said 
estate shall go to the daughter or daughters of my brother Rich- 
ard, and to the daughter or daughters of my brother Matthew, 
remainder to his right heirs." (a) 

The question was, whether by the devise to the daughters of 
Richard and Matthew, an estate in fee or for life passed. 

The Court was clearly of opinion, that an estate for life only 
passed to the daughters : for, as it was argued, that although in 
wills the word " estate " was sufficient to carry a fee, yet in this 
case, wher,e the consequence was the disinheriting an heir at 
law, a fee should not pass thereby, unless the intent of the tes- 
tator was very plain and apparent for that purpose. That the 
intent was not so apparent as to force the Court to put such a 
construction on the devise to the daughters as was insisted on ; 
but on the contrary, from the contexture of the whole will, it 
seemed plain that the word " estate " was always, and particu- 
larly in the devise in question, used as descriptive only, and 
synonymous with " lands ; " so that there would be putting a 
force on it to make it carry a fee. And besides, the devise over 
to the testator's heirs showed that he thought he had further 
interest to dispose of, after the devise to the daughters, to whom 
he did not seem to intend so much as an estate tail, (b) 

Judgment that the daughters of Richard and Matthew took 
only estates for life.j - 

(a) Sogers v. Briggs, Andrews, E. 210. (6) Goodright v. Barron, 11 East, 220. 



|t In other cases besides those cited by the author, the general import of the word 
" estate " has been confined by expressions referring to the local situation of the prop- 
erty, but the inclination of the Courts in later decisions has been to give the word 
" estate " its full effect, except in instances where the expressions accompanying that 
word have met with a contrary construction ; and indeed instances are not wanting 
where th,e same expressions which in earlier cases have limited the operation of the 
word " estate," in later authorities have been held not to restrain its general import. 
The following are some of the cases in which the word " estate " although coupled with 
words of locality has been held to pass a fee. My estate at, of, or in A., Price v. Gib- 
son, 2 Eden, 115; Chichester v. Oxenden, 4 Taunt. 176; 4 Dow, 92; Uthwatt v. Bryant, 
6 Taunt. 317. My estate called A., in the parish of B., Roe v. Wright, 7 East, 259. All 
my estate I bought of A., Bailis v. Gale, 2 Ves. S. 48. My freehold estate consisting 
of thirty acres, situate at A., in the county of B., now in the occupation of C, Gardner 
v. Harding, 3 I. B. Moore, 565, overruling it would seem Pettiward v. Prescott, 7 Ves. 
541 ; see also Paris v. Miller, 5 M. & Selw. 408. All my real and personal estate 
whatsoever (that is to say) my lands and buildings at A., in the county of B., upon my 



Title XXXVIII. Devise. Ch. XIII. s. 41—44. 343 

*41. The word "hereditament" only creates an estate *272 
for life, in a will ; for it does not denote the measure or 
quantity of the estate ; as it has a proper and appropriate mean- 
ing, and extends to annuities, advowsons in gross, and many 
other things, (a) f 

42. Although an estate be de-vised to a person and the heirs 
of his body, yet if the general intent of the testator can only be 
carried into effect by construing the words "heirs of the body" 
to be words of purchase, the devisee will only take an estate for 
life. 1 

43. A person devised to his son B. J., and his heirs lawfully 
to be begotten," that is to say, to his first, second, third, and every 
son and sons lawfully to be begotten of the body of the said B. 
J., and the heirs of the body of such first, second, third, and every 
son and sons successively, lawfully issuing; and in default of 
such issue, then to his right heirs forever, {b) 

It was resolved that B. J. took only an estate for life, the word 
" heirs " being fully explained by the subsequent words, to be a 
word of purchase. 

44. Lands held in gavelkind were devised to Ann Cornish and 

(a) Doe v. Mellor, supra, § 33. (5) Lowe v. Davies, 2 Ld. Raym. 1561. 



estate, Denn v. Hood, 7 Taunt. 35. All my lands, &c. to A. for life, and after his 
decease my said estates to B., Roe v. Bacon, 4 M. & Selw. 366. As to the rest of my 
estate my two houses at A. and B., that in A. to my daughter, Esdaiie v. Gall, 1 Buss. 
& M. 540 ; S. C. 8 Bing. 328, overruling the decision of the Master of the Rolls upon 
the same devise. But in the latter case of Doe v. Tucker, 3 Bar. & Adol. 473, very nearly 
resembling Gall v. Esdaiie, the Court of K. B. decided that an estate for life only passed 
by the words of the will. In Doe v. Tucker, the testator devised to his wife his free- 
hold estate called P., during her life, and, after a bequest of stock, goods, and chattels 
to his wife for life, and a legacy of £10 to his son and heir Richard, added, Item, all the 
above bequeathed lands, goods, and chattels, after the death of my wife, I give and de- 
vise in manner following : unto my son Richard, unto my son Thomas, unto my son 
Robert, and unto every other of my children then in being, share and share alike equally 
to be parted between them. In Gall v. Esdaiie, these were the introductory expres- 
sions, " as to such worldly estate as it hath pleased God to bless me withal, I give and 
dispose as followeth," but there were no such expressions in Doe v. Tucker ; we have 
seen that these words in many cases have been brought in aid as evidence of the testa- 
tor's intention not to die intestate as to any part of his property.] 

t [The word perpetual as applicable to an advowson, is only descriptive of the thing 
devised, and not of the quantum of interest. 2 B. & B. 27 ; 1 Pri. 353. See Doe v. 
Wood, 1 B. & Aid. 518. — Note to former edition. 

1 See Eindlay v. Riddle, 3 Binn. 155-160, per Yeates, J. 



344 Title XXXVIII. Devise. Ch.. XIII. s. 44—45. 

the heirs of her body lawfully begotten, or to be begotten, as 
well females as males, and to their heirs and assigns forever ; to 
be equally divided, share and share alike, as tenants in common, 

and not as joint tenants, (a) 
273* • *Lord Mansfield said, that the devise could not take 

effect at all, but would be absolutely void unless the heirs 
of the body of Ann Cornish took as purchasers. The lands 
devised were gavelkind, and it was manifest the testator did not 
mean that his estate should go in a course of descent in gavel- 
kind, for he gave it to the heirs of the body of Ann Cornish, as 
well females as males ; therefore they could not take otherwise 
than as purchasers. It would be a void devise, if the words 
were to be construed as words of limitation ; for the testator 
breaks the gavelkind descent, by giving it to females as well as 
males. He likewise added : " and to their heirs and assigns for- 
ever, to be divided equally, share and share alike." Nay, he 
went further : " as tenants in common, and not as joint tenants." 
But this could not be, if they were to take in a course of gavel- 
kind descent, for in such case they must take as coparceners. 
Upon the whole, as no man could doubt of the testator's inten- 
tion, and as this was the only method of effectuating it, and as 
there was no rule of law that prevented heirs taking as purchas- 
ers, where the intention of the testator required it, so he was of 
opinion that the words, heirs of the body, were words of purchase. 
Judgment was given accordingly. ' 

45. A person devised to his niece M. O., and the issue of her 
body, lawfully to be begotten, as tenants in common if more 
than one ; but in default of such issue, or being such, if they 
should all die under the age of twenty-one, and without leaving 
lawful issue of any of their bodies, then over, (b) 

(a) Doe v. Laming, 2 Burr. 1100. 1 Black. R. 265. 

(6) Doe v. Burnsall, 6 Term R. 30. Doe v. Elvey, 4 East, 313. 



1 See Sisson v. Seabury, 1 Sumner, 235, where this case and others of the same class 
are commented on by Mr. Justice Story. In that case, lands were devised " to A and 
to his male children, lawfully begotten of his body, and their heirs forever, to be equally 
divided amongst them and their heirs forever ; " A at that time having no children ; 
and it was held a life-estate in A, with a contingent remainder to his children. And see 
Doe v. Provost, 4 Johns. 61 ; Dingley v. Dingley, 5 Mass. 535 ; Adams v. Cruft, 14 
Pick. 22 ; Doe v. Harvey, 4 B. & C. 610 ; Greenwood v. Eothwell, 5 M. & Gr. 628. 



Title XXXVIII. Devise. Ch. XIII. s. 45—51. 345 

The Court of K. B. held, that the niece only took ah estate for 
life. 

46. A testator devised to his daughter Mary, and to all and 
every the child and children, whether male or female, of her body 
lawfully issuing, and unto his, her, and their heirs or assigns 
forever, as tenants in common. It was held by Sir John Leach, 
V. C, that the daughter took an estate for life, with remainder to 
her children as tenants in common in fee. (a) 

47. An estate may be devised to a person for a term of years, 
as well as for any freehold interest ; and it has been stated to 
have been formerly held, that a devise to a person and the heirs 
of his body for 500 years would determine by the death of the 
devisee without issue; but that this doctrine had been 
altered, *and it was settled that such a term would con- *274 
tinue for 500 years, and vest in the executors of the 
devisee, (b) 1 

48. It has been also stated, that a devise to executors for pay- 
ment of debts creates an estate for years ; and also a devise till 
such time as a particular sum shall be raised out of the rents 
and profits of the lands devised, (c) 

49. With respect to uncertain interests, if a man devises lands 
to his wife, till his son comes of age, to provide his children with 
necessaries, this interest does not determine by the death of the 
wife, but goes to her executors, (d) 

50. If the devise had been that his lands should descend to his 
son, but that his wife should have the full profits till his son 
came of age, for his maintenance ; here nothing being given to 
the wife but a mere confidence, her interest would determine 
with her death, (e) 

51. In a case which has been already stated, it was resolved 
that the wife's estates determined by the death of the son. (/) 

(a) Jeffery v. Honywood, i Madd. 398. 

(6) Tit. 8, c. 2. [Doe v. Lakeman, 2B.& Adol. 30.] (c) Tit. 8, c. 1. 

(<Z) Smith v. Havens, Cro. Eliz. 252. • (e) Anon. 2 Leon. 221. 

(/) Mansfield v. Dugard, tit. 16, c. 1, § 80. 



1 In Massachusetts and Vermont, terms of which fifty years or more remain unexpired, 
have many attributes of freeholds ; and in Ohio, permanent leaseholds, renewable for- 
ever, are deemed freehold estates. See ante, tit. 8, ch. l,k 9„note. 



346 



CHAP. XIV. 



CONSTRUCTION — RULE IN SHELLEY S CASE. 



Sect. 1. Applied in Devises of Legal 

Estates. 
7. Though the Limitation be 

only Mediate. 
10. Though the Estate for Life 

arise by Implication. 
12. Where the word Heir is 

used. 
17. Though there are superadded 

Words of Limitation. 
21. Or Words of Modification 

of the Estate. 
26. Applied in Devises of Trust 

Estates. 
31. (And in Estates pur autre 

vie.~) 
37. And in Wills of Terms for 

Years. 
39. The Rule not applied to the 

words Sons or Children. 



Sect. 44. Or to the word Heirs, with 
Words of Explanation. 
48. Or to the word Heir, with 
Words of Limitation. • 

51. Or to Heirs, with words lim- 

iting a particular kind of 
Estate. 

52. Or to the Heir for Life. 

54. Or to Issue, with Words of 
Limitation. 

58. Unless the general intent 
require a different Con- 
struction. 

63. Or where an Executory 
Trust is created. 

72. Or where the Estates are of 
different Natures. 

76. Case of Perrin v. Blake. 

78. General Observations on the 
Rule. 



Section 1. The rule established in Shelley's case, of the origin 
of which an account has been already given, having been estab- 
lished for purposes of general utility, has been adopted in the 
construction of devises of legal estates, as well as in that of 
deeds. 1 But it being a principle of law that the intention of the 



1 This rule has been totally abolished in many of the United States. In New Hamp- 
shire, New Jersey, and Missouri, it is abolished only in case of lands devised. N. Hamp. 
Rev. St. 1842, ch. 156, § 5 ; N. Jer. Rev. St. 1846, tit. 10, ch. 2, § 10; Misso. Rev. St. 
1 845, ch. 1 85, § 46. In several other States it has been distinctly recognized as a sub- 
sisting rale of property. See ante, tit. 32, ch. 23, § 3, note. [This rule is in favor in 
Georgia. Dudley v. Mallery, 4 Geo. 52. For application of the rule in Pennsylvania? 
see George v. Morgan, 16 Penn. State R. (4 Harris,) 95.J 

For farther discussion of the rule, see Hayes on Limitations in Devises, p. 52-56, 
87-115 ; 2 Jarman on Wills, ch.- 37, p. 241-270, by Perlans. 



Title XXXVIII. Devise. Ch. XIV. s. 1-4. 347 

testator is to be the chief guide in the expounding of devisss, it 
has been often doubted how far the application of this rule should 
be extended, in contradiction to the particular intention of the 
testator. It has, however, been uniformly held, that in all cases 
of devises of legal estates wherever lands are given to a 
person for life, * or for any greater estate, with an 'immedi- * 276 
ate ' remainder to the heirs, or heirs of the body, of such 
devisee, the word " heirs " or the words " heirs of the body," shall 
operate as words of limitation, and give the devisee an estate in 
fee simple, or in tail, (a) 

2. A person devised lands to his son John, to hold to the said 
John for life, and after his decease, then to the use and behoof of 
the heirs male of his body ; and for default of such issue, to his 
son Robert and the heirs male of his body, (b) 

It was resolved that the first words created an estate tail, as 
well in a will, as in any other conveyance. The estates could not 
stand together, but the estate for life was swallowed up in the 
estate tail. 

3. Although it should appear from other circumstances, besides 
an express devise for life, that the testator did not intend to give 
the first devisee a greater estate, such as a power to settle a joint- 
ure, with the concurrence of trustees ; or an interposed estate to 
trustees to preserve contingent remainders ; or a clause that the 
devisor's estates should be without impeachment of waste ; yet 
the Courts have applied the rule, and given the devisee an estate 
of inheritance. 2 

4. A person devised lands to trustees and their heirs, to the 
intent and purpose that they should permit and suffer A to re- 

(a) Tit. 32, o. 23. (Bishop v. Selleck, 1 Day, 801. In re Jamej, 1 Dqjl. 48. Home v. 
Lyeth, 4 H. & J. 431.) 
(5) Kundale v. Eeley, Cart. 170. Measure v. Gee, 5 Barn. & Aid. 910. 

i If there is a second estate for life intervening between the first estate for life and the 
remainder limited to the heirs of the first taken, it has been doubted whether the rule 
in Shelley's case would apply. Richardson v. Wheatland, 7 Met. 169, 172. 

2 Where, by plain words, in themselves liable to no doubt, an estate tail is given in 
a will, it cannot be cut down to a life estate ; unless there are other words, which 
plainly show the testator to have used the former words as words of purchase, contrary 
to their ordinary sense ; or, in the other provisions of the will, there be a clearly ex- 
pressed inconsistent intention, which can only be fulfilled by sacrificing the particular 
provision, and regarding the expressions as words of purchase. Jack v. Featherston, 
9 Bligh, 237 ; 3 CI. & Tin. 67. 



348 Title XXXVIII. Devise. Ch. XIV. s. 4— 6. 

ceive and take the rents and profits for and during the term of 
his natural life ; and after his decease should stand seised of the 
same lands to the use of the heirs of the body of A; with the 
proviso that the trustees and A might make a jointure for his 
wife, (a) 

It was determined that A took an estate tail. 

5. Lands were devised to B for life, without impeachment of 
waste, remainder to trustees and their heirs during the life of B 
to support contingent remainders, remainder to the heirs of the 
body of B, remainder over, (b) 

Sir J. Jekyll was of opinion that an estate for life only passed 
to B, with remainder to the heirs of his body, by purchase. But 
upon an appeal to Lord King, he said the remainder to the heirs 
of the body of B was within the general rule, and must operate 
as words of limitation, and consequently create a vested estate 
tail in B ; and that the breaking into this rule would occasion 
the utmost uncertainty. 

6. A person devised in these words, — "I give to my 
277* loving * brother G. S. and the heirs * of his body, the 
males having preference, and succeeding according to 
their births ; and to preserve contingent remainders from being 
barred during the life of the said G. S., I give the said estates 
and farms to my friend Doctor R. ; and on failure of issue of the 
said G. S., I give the said estates and farms to my niece." The 
cause came on to be heard before Lord Hardwicke, who directed 
a case to be made for the opinion of the Judges ,of the K. B. 
Afterwards upon his resigning the great seal, Lords Commis- 
sioners Wiles, Smythe, and Wilmot succeeding to it, application 
was made to them to hear the cause, which they consented to do, 
considering themselves as Judges at law, though sitting in a 
court of equity, (c) 

Lord Commissioner Wilmot said the reason of the rule in 
Shelley's case, that where one takes an estate of freehold, and 
. after an estate is limited to the heirs male of his body, the heirs 
male must take by descent, and not by purchase, was, to secure 
to the lord his fruits on descent, and had long since ceaseU 
But it had been better if that rule had never been broke in upon. 

(a) Broughton v. Langley, 2 Ld. Eaym. 873. Tit. 12, c. 1, S. C. 12 East, 461. 

(J) Papillon v. Voice, 2 P. Wms. 471. (c) Sayer v. Masterman, Amb. 344. 



Title XXXVIII. Devise. Ch. XIV. s. 6—8. 349 

He was not for breaking in upon it further. He could not find 
any case where the words, heirs of the body, in the plural num- 
ber, and no words superadded, had been considered as words of 
purchase, and referred to Lord King's opinion in Papillon v. 
Voice, that the limitation to trustees did not control the estate 
tail. 1 

The Court declared that G. S. was entitled to an estate tail. 

7. Where the limitation to the heirs, or heirs of the body of 
the devisee for life, is only mediate, by the interposition of some 
other estate, the devisee will, notwithstanding, take an estate in 
fee simple, or in tail, in remainder ; to take effect in possession, 
upon the determination of the interposed estate ; and the estate 
for life is not merged in the remainder, (a) 2 

8. R. Bromley being entitled to a reversion in fee in certain 
lands, expectant upon the death of Elizabeth Foster, devised 
the same to Robert Colson for life, remainder to trustees during 
his life, to preserve contingent remainders, remainder to the heirs 
of the body of the said Robert Colson, remainder over, (b) 

The question was, what estate Robert Colson took under 
this devise ; and the case having been sent by the Chancellor 
(Lord Hardwicke) to the Court of K. B., the Judges of that 
Court sent the following certificate : — " We have heard 
counsel * in the question referred by your Lordship to us ; * 278 
and as it appears by the state of the case, there is, after 
the determination of the estate for life of Robert Colson, a de- 
vise to J. B. and R. R. and their heirs, for and during the life of 
Robert Colson, we are of opinion that by reason of that remainder 
interposing between the devise to Robert for life, and the subse- 
quent limitation to the heirs of his body, the said Robert took an 
estate for life, not merged by the devise to the heirs of his body ; 

(a) (Sedvide Richardson v. Wheatland, 7 Met. 172.) 

(b) Colson v. Colson, 2 Atk. 247. 2 Stra. 1125. 



1 Other cases are, Reece v. Steel, 2 Sim. 233 ; Irwin u. Cuff, 1 Hayes, 30 ; Bur- 
net v. Denniston, 5 Johns. Ch. 35 ; M'Clintick v. Manns 4 Munf. 328 ; Ward v. 
Bevil, 1 Y. & J. 512; Langstone v. Pole, Tam. 119; Roosevelt v. Thurman, 
1 Johns. Ch. 219; Broadders u. Turner, 5 Rand. 308; Williams v. Foster, 3 Hill, 
S. C. Rep. 193. 

2 Roy v. Garnett, 2 Wash. 34 ; Fearne, Rem. 25. But see Richardson v. Wheat- 
land, 7 Met. 172 ; Supra, $ 1, note. 

vol. in. 30 



350 Title XXXVIII. Devise. Ch. XIV. s. 8—9. 

but by that devise an estate tail in remainder vested in the said 
Eobert." 

Against this certificate the counsel cited 2 Roll. Ab. 418, pi. 
4 & 5, to prove the remainder to the heirs of the body contin- 
gent. But after looking into the book, Lord Hardwicke paid 
no regard to it; and decreed according to the opinion of the 
Judges, (a) , 

9. In the case of Hodgson v. Ambrose, which has been already 
stated, there was a devise to Elizabeth Belchier and Catherine 
Jolland, in the same words as in the case of Colson v. Colson; 
a case was made for the opinion of the Court of K. B. upon the 
following question : — " Whether Catherine Belchier, the daugh- 
ter of Elizabeth Belchier, took any, and what estate under the 
will of Susan Jolland ; and, secondly, what estate Catherine Jol- 
land took under the said will." (b) 

The Judges of the Court of King's Bench gave their opinion 
in the following words : " As to the question whether Elizabeth 
would have taken an estate tail, whatever our opinions might be 
if the case were new, we think, as the case of Colson v. Col- 
son is literally the same, the precise question ought not to be 
again litigated ; and by that authority we are bound to say, in 
the words of the certificate in that case, that as it appears by 
the state of the case that there is, after the determination of the 
estate for life to Elizabeth Belchier, a devise to W. A. and J. P. 
and their heirs, for and during the life of Elizabeth Belchier, we 
are of opinion that Elizabeth Belchier, if she had survived the 
testatrix, would have taken an estate for life in the premises de- 
vised to her, not merged by the devise to the heirs of her body ; 
but by that devise an estate tail in remainder would have vested 
in the said Elizabeth ; and that Catherine Jolland took an estate 
for life in all the devised premises, not merged by the devise to 
the heirs of her body ; but by that devise an estate tail in re- 
mainder, vested in the said Catherine Jolland." 
279 * * The Court having decreed in conformity to this cer- 
tificate, an appeal was brought in the House of Lords, 
where the following question was put to the Judges : " What 
estate Catherine Hodgson took under the will." And the Lord 
Ch. Baron of the Exchequer having delivered the unanimous 

(a) MSS. Eep. (J) Ante, c. 8, § 29. 



Title XXXVIII. Devise. Ch. XIV. s. 9—11. 351 

opinion of the Judges present, " That Catherine Hodgson took 
an estate for life in all the premises, not merged by the devise to 
the heirs of her body ; and that by that devise an estate tail 
in remainder vested in the said Catherine ; " it was ordered and 
decreed, that the appeal should be dismissed, and the decree 
affirmed, (a) 

10. Though no estate for life be expressly devised, but only 
arises by a necessary implication from the words of the will, yet 
the rule will be applied, (b) 

11. I. Foorde made his will, having then two sons, Rawlinson 
and William, and a brother Nicholas, who had then also two sons, 
James and Nicholas, and gave his estate real to his eldest son 
Rawlinson at his age of twenty-three, to enjoy the whole during 
his life. " And the whole estate, of which he is only tenant for 
life, shall after his decease go to his eldest son that shall be then 
living ; and if he dies without any son or sons to enjoy it during 
their lives, (of which none are or shall be tenants but while they 
live to enjoy it,) that then it shall come to his brother William 
Foorde during his life, and to any of his heirs male during their 
lives, and no longer ; and if they die without issue male, then 
to the heirs male of my brother Nicholas Foorde's sons, and to 
any of their heirs male during their lives (of which none of them 
are tenants any longer, nor shall it be in any of their powers to 
sell, dispose, or make away any part or the whole of it) ; and in 
case they all die without heirs male, then it is to go to the next 
of kin of me." (c) 

At the same time, and with the same solemnities, the testator 
published a schedule, referred to in the said will, and which the 
special verdict found to be part of his will, containing a very 
particular account of all his real and personal estate ; the title to 
which schedule was in these words : " An account how I dispose 
of my estate to my son Rawlinson Foorde, as followeth : — He 
paying his mother out of my real estate the sum of £15 per 
annum during her life, and ,£24 per annum out of my mortgages, 
and then all to revert to my son Rawley Foorde, during his life ; 
and after his death to his sons ; and for want of sons, to 
his * brother William Foorde, during his life, and after- * 280 

(o) [ Doe v. Colyear, 11 East, 548. Measure v. Gee, 5 Bar. & Aid. 910.] 
(J) (Bowers v. Porter, i Pick. 207. Carr v. Porter, 1 M'Oord, Ch. R. 60.) 
(c) Hayes v. Foorde, 2 Black. E. 698. [Eeece v. Steel, 2 Sim. 233.] 



352 Title XXXVIII. Devise. Ch. XIV. s. 11—15. 

wards to William Foorde's eldest son; and for want of his 
having sons, to my brother Nicholas Foorde's sons; and for 
want of any sons, to my sons' daughters, and so to the next of 
kin." 

Rawlinson and William, the two sons of the testator, died 
without issue male ; James, the eldest nephew, died before Wil- 
liam the son ; and upon William's death, the youngest nephew 
entered, and suffered a recovery. The question was, whether 
Nicholas the nephew took an estate for life, or in tail, under the 
will and schedule. 

The Court of K. B. in Ireland was of opinion that he took 
only an estate for life. 

Upon a writ of error to the Court of K. B. in England, Lord 
Mansfield delivered the opinion of the Court, that the only doubt 
was, whether by the words of the will, Nicholas, the nephew of 
the testator, took any estate by implication. That this doubt 
was removed by the schedule, which expressly gave an estate to 
the sons of his brother Nicholas Foorde ; that therefore Nicholas 
the nephew took an estate for life by implication, thus explained, 
which being conjoined to the estate expressly given to his heirs 
male, would by the known rules of law,' give him an estate in 
tail male. Judgment was given accordingly. 

12. Although the limitation be to " the heir" in the singular 
number, yet the rule will be applied, and the devisee will be con- 
strued to take an estate tail, (a) 

13. Thus, Lord Hale says, it was adjudged in 43 Eliz. that a 
devise to A for life, remainder to the next heir male, and for 
default of such heir male, then to remain over, was an estate 
tail, (b) 

14. A person devised lands to his youngest son forever, and 
after his death, to the heir male of his body forever ; and for de- 
fault of such heir male, to B. his eldest son, forever. It was 
resolved, that the youngest son took an estate tail, (c) 

15. In a case cited by Mr. Eobinson, in his Custom of Gavel- 
kind, there was a devise to Serjeant Miller and his wife for their 
lives, remainder to the next heir male of their two bodies. It 
was held that this was a devise in tail; for a devise to the heir 

(a) (Supra, ch. 10, § 37.) (b) Burley's case, 1 Vent, 230. 

(c) Welkins v. Whiting, 1 Eoll. Ab. 836. Bulst. 219. 2 Vern. 324. 



Title XXXVIII. Devise. ' Ch. XIV. s. 15—18. 353 

male was a devise in tail, unless there were words of limitation 
superadded, so as to bring it within the reason of Archer's 
case. *But the words "first, next, or eldest" or any like *281 
words superadded, made no difference, (a) 

16. Sir T. Trollope devised the manor of A. to his first son 
William for life, remainder to the heirs male of his body, remain- 
der to his second son Thomas for life, and after his death to the 
first heir male of his body, (b) 

The Court held that the words " heir male " were to be under- 
stood collectively, and that Thomas took an estate tail ; it ap- 
pearing that such was the testator's intention by the other devises. 
That this stood distinguished from Archer's case, no limitation 
being superadded to the words "first heir male ; " and the word 
first should be understood first in order of succession from time 
to time, (c) . 

17. A devise to the heirs, or heirs of the body, of a prior devi- 
see, with superadded words of limitation, will be construed to be 
within the rule in Shelley's case, so as to create an estate in fee 
or in tail, (d) 1 

18. A person devised to Nicholas Lisle for his life, and after 
the decease of the said Nicholas, he' devised the same unto the 
heirs male of the body of the said Nicholas, lawfully to be be- 
gotten, and his heirs forever ; but if the said Nicholas should 
happen to die without such heir male, then he devised over, (e) 

(a) Miller v. Seagrave, Bob. Gav. 96. Infra, s. 49. 

(6) Dubber v. Trollope, Arab. 453. Cases temp. Hardwicke, 160. 

(c) [O'Keefe v. Jones, 13 Ves. 413.] Infra, s. 49. 

(d) (Eoe v. Bedford, 4 M. & S. 362. Doe v. Harvey, 4 B. & C. 610. 7 D. & K. 78. Doe 
v. Featherstone, 1 B. & Ad. 944. Osborne v. Shrieve, 3 Mason, 391.) 

(e) Goodright v. Pullyn, 2 Ld. Raym. 1437. 2 Stra. 729. 



1 If the devise over is expressly, or by construction of law, contingent, namely, to 
such as may be heirs of the first taken at the time of his decease, the rule in Shelley's 
case would not apply. Bowers v. Porter, 4 Pick. 205. [Chilton v. Henderson, 9 Gill, 
432.] 

To change the word "heirs" into a word of purchase, the heirs must be disabled to 
take as heirs, by reason of a distributive direction, incompatible with the ordinary 
course of descent, or the limitation must be directed to the then presumptive heirs of the 
person to whom the estate for life is limited. 4 Kent, Comm. 230 ; Horne v. Lyeth, 4 
H. & J. 431 ; and see Lyles v. Digge, 6 H. & J. 364 ; Pindlay v. Riddle, 3 Binn. 139 ; 
Davis v. Hayden, 9 Mass. 514; [Doe v. Jackman, 5 Ind. (Porter,) 283.] 

30* 



354 Title XXXVIII. Devise. Ch. XIV. s. 18—20. 

The Judges were all of opinion that this was an estate tail in 
Nicholas. They held that the subsequent words relied on, as 
his, and if he died without such heir male, were not sufficient to 
restrain and alter the operation of, the words, heir males, and so 
qualify them as to make them a description of the person ; and 
that the operation of plain and clear words, and a settled rule of 
law, should not be defeated or broken into by uncertain or doubt- 
ful words, which they took the last at least to be. (a) 

19. The following case was sent by the Lord Keeper to the 
Court of C. B. for its opinion, (b) 

G. Legate devised his lands, in default of issue of his own 
body, to his nephew William Legate, for- and during the term of 
his natural life, and after his decease, to the heirs male of the 
body of his said nephew lawfully to be begotten, and the heirs 
male of the body of every sucb. heir male, severally and succes- 
sively, as they should be in priority of birth ; and for want 
282* of *such issue, to his brother, &c. The question was, 
whether William Legate, the nephew, had an estate tail 
vested in him, or an estate for life only. 

Three of the Judges were of opinion that William Legate had 
an estate tail vested in him, and Mr. Justice Tracey certified that 
he had only an estate for life. 

Mr. Peere Williams says, the Court appearing not to be satisfied 
with the certificate of the three Judges, directed an ejectment 
to be brought in B. E. in order to have the matter settled : but 
it was said the parties agreed, and so the question was not deter- 
mined. Yet in 2 Vesey, 657, Lord Hardwicke says, Lord Cow- 
per held himself bound to agree with the three Judges, and so 
decreed. 

20. Thomas Wardell devised thus, — " I give and bequeath 
unto my daughter Lucretia all my plantations, together with the 
negroes, &c, during the natural life of my said daughter. Item, 
I bequeath to the heirs of the body of my said daughter Lucre- 
tia, begotten or to be begotten, and to his or her heirs forever, 
after my said daughter's decease, all my before-mentioned plan- 
tations, &c. But for want of such heirs of the body of my said 
•daughter, I also give and bequeath the aforesaid premises, after 

(a) [Wright v. Pearson, 1 Eden, 119.] (ft) Legate v. Sewell, 1 P. Wins. 87. 



Title XXXVIII. Devise. Ch. XIV. s. 20—22. 355 

the decease of my said daughter, to my own next heirs, and their 
heirs forever." (a) 

This case came on before the Privy Council upon an appeal 
from Barbadoes, and the following reasons were used in the 
printed case, 

" It is a general rule of law* that when an estate is limited to 
one for life, a limitation afterwards to the heirs of the body of 
that same person creates an estate tail. And though this be in 
the case of a will, there is no reason to depart from that rule ; 
.for if Lucretia were construed to have an estate for life only, 
then the remainder to the heirs of her body would be words of 
purchase ; and then, though she had several sons, yet the eldest 
only would have been heir, and the younger sons would never 
have taken under that limitation, though it was clearly the tes- 
tator's intention that all her sons should take, by using the word 
heirs, in the plural number. And the subsequent clause, — ' for 
want of such heirs of the body of my said daughter, to my own 
next heirs, and their heirs forever,' is a further explanation of 
his meaning, that his daughter should take an estate tail, 
with a * remainder to his own right heirs. Signed, N. * 283 
Fazakerley. D. Eyder." 

This case was heard before the Privy Council in 1730, when 
it was ruled that Lucretia took an estate tail. The Chief Justices, 
Raymond and Eyre, assisted at the decision. And Lord Kenyon 
has said, that though the above were only the reasons of the 
counsel in that case, they contained as much good sense and 
sound law as if they had the authority of all the Judges of 
England, (b) 

21. [The rule under consideration is equally applicable, not- 
withstanding superadded words of modification, inconsistent with, 
an estate tail in the first taker. 

22. Thus where the devise was to A, for life, and after his 
decease to the heirs of his body to take as tenants in common : f 
or to the heirs of his body in such shares and proportions, man- 

(a) Morris v, "Ward, cited 8 Term E. 518. [Nash v. Coates, 3 Bar. & Adol. 839.] 
(6) Measure v. Gee, 5 B. & Aid. 910. Kinch v. Ward, 2 Sim. & Stu. 411.] 



[t Bennett v. Earl Tankerville, 19 Ves. 170; Doe v. Featherstone, 1 B. & Adol. 
944.] 



356 Title XXXVIII. Devise. Ch. XIV. s. 22—27. 

ner and form as A should appoint ; f and in default of appoint- 
ment to the heirs of his body, share and share alike. J 

23. So also where the devise was of real estates subject to 
debts and legacies, to T. C. for life, and after the determination 
of that estate in his lifetime to A and B and their heirs during 
his life, to preserve contingent rem'ainders, and after the decease 
of T. C, to and among all and every the heirs of the body of T. 
C. as well male as female, to take as tenants in common ; it was 
decided T. C. took an estate tail, (a) 

24. The above rule of construction has not been adopted with- 
out considerable conflict of opinion, involving some collision of 
authority ; § but it is conceived that the rule as above stated is 
now settled.] 

25. There are, however, some cases in which superadded words 
of limitation may control the words " heirs," and " heirs of the 
body," so as to render them words of purchase ; of which an 

account will be given hereafter. 
284 * * 26. In consequence of the rule that equity follows the 
law, it has been long settled that in devises of mere trust 
estates, where no conveyance is directed to be made, the con- 
struction is the same in Chancery, as it would be in a court of 
common law, upon a devise of a legal esta-te ; so that the rule in 
Shelley's case is there applied to the construction of devises, as 
well as at law. (b) 

27. One devised lands to four persons and their heirs, for pay- 
ment of debts, and afterwards to the use of them and their 
heirs. After which, by a codicil, he devised that his will should 
stand, saving that when his debts were paid, A, who was one of 
the four devisees in the will, should have his share of the lands 
to himself for life, with a power to make leases for ninety-nine 

(a) Doe v. Harvey, 4 B. & Cress. 610. (6) Sweetapple v. Bindon, tit. 5, c. 2, s. 14. 



[tDoe v. Goldsmith, 7 Taunt. 209.] 

[t Doe v. Jesson, 5 M. & Sel. 95 ; 2 Bli. 1; Infra, s. 62.] 

[<, Wilson v. Vansittart, Arab. 562 ; Doe d. Browne v. Holme, 3 Wilson, 237, 241 ; 
Doe v. Laming, 2 Burr. 1100 ; Doe v. Ironmonger, 3 East, 533 ; Doe u. Goff, 11 East, 
668 ; Gretton v. Haward, 6 Taunt. 94 ; Crump v. Norwood, 7 Taunt. 362 ; 2 Marsh. 
161 ; Eight v. Creber, 5 B. & Cress. _866, and other cases which it is not considered 
necessary to cite in this place.] 



Title XXXVIII. Devise. Ch. XIV. s. 27—28. 357 

years determinable on three lives, remainder to the heirs male of 
his body, remainder over, (a) 

Lord Cowper was of opinion, that A ought to be tenant for 
life only, with remainder to his first and other sons in tail male, 
But the case coming on before Lord Harcourt, on a rehearing, 
he said — " This being the case of a will, differs from the several 
cases that have been cited of marriage articles, in the nature of 
which the issue are particularly considered, and looked upon as 
purchasers ; and for which reason, the Court has restrained the 
general expressions made use of by the parties ; for it cannot 
reasonably be supposed that a valuable consideration would be 
given for the settlement of an estate, which, as soon as settled, 
the husband might destroy. But no case has been cited where, 
upon the words of a will, or the parties claim voluntarily, the 
like decree has been made. In all such cases, the testator's 
intent must be presumed to be consistent with the rules of law, 
and at law these words would certainly create an entail. Neither 
can it be inferred, with any certainty, from the power of leasing 
given by the testator, that no estate tail was intended ; in regard 
such power of leasing is more beneficial than that given to ten- 
ant in tail by statute. And as the debts are admitted by the 
pleadings to be all paid, the same construction is now to be 
made, as if there had been originally no trust. So decree A's 
share or fourth part to be conveyed to him and the heirs male of 
his body, remainder over," &c. 

28. The doctrine laid down in the preceding case, was con- 
tradicted by Lord Hardwicke in the following one. A person 
devised an estate to trustees, their heirs, and assigns, in 
trust that *they and their heirs should in the first place, *285 
by the rents and profits, or by sale or mortgage of the 
premises, raise so much as should be necessary for the payment 
of his debts ; and after payment thereof, gave the same unto his 
trustees for 500 years, without impeachment of waste, upon trust 
as after mentioned ; and then went on in these words, — " And 
from and after the determination of the said estate for years, then 
I give and devise all my said lands, &c. unto my said trustees, 
their heirs and assigns, my mind being that my said trustees 
shall be and stand seised of the said premises in trust to the 

(a) Bale v. Coleman, 1 P. Wms. 142. [Philips v. Brydges, 3 Ves. 120.J 



358 Title XXXVIII. Devise. Ch. XIV. s. 28—29. 

several uses, behoofs, intents, and purposes after declared ; viz. : 
as for one moiety of the same premises, I give and devise the 
same to the use and behoof of my nephew Thomas Bagshaw, for 
the term of his natural life, without impeachment of waste ; and 
from and after the determination of that estate, to my said trus- 
tees and their heirs, for and during the life of the said Thomas 
Bagshaw, to preserve and support the contingent uses and re- 
mainders hereinafter limited, but to permit the said Thomas Bag- 
shaw to receive the rents and profits during his natural life ; and 
after his decease, then to the use and behoof the heirs of the 
body of the said Thomas ; " and for want of such issue, then to 
Benjamin Bagshaw in the same manner, (a) 

Lord Hardwicke held, that Benjamin Bagshaw took an estate 
for life only ; for if a conveyance had been prayed, there must 
have been a limitation to trustees to preserve contingent remain- 
ders, and then the next limitation must have been to the first 
and other sons of Benjamin Bagshaw ; for there were no contin- 
gent uses or remainders, unless the limitations to the heirs of the 
body of B. Bagshaw were allowed to be such. 

The preceding case is not now held to be any authority, as it 
has been contradicted by Lord Keeper Henley, in a case which 
will be stated hereafter ; and also by a determination of Lord 
Thurlow. (b) 

29. Sir Edward Turner devised all his real estate to C. B., in 
trust to pay the rents to Sarah Garth for her life, and after her 
death, to pay the same to Edward Turner Garth, her son, for life, 
and afterwards to pay the same to the heirs of his body, (c) 

Lord Hardwicke said, that upon the true construction of this 
will, he was obliged by the rules of law and equity to direct the 
conveyance to be to the son in tail : because in limitations 
286 * of a * trust, either of real or personal estate, to be deter- 
mined in the Court of Chancery, the construction ought 
to be made according to the construction of limitations of a legal 
estate ; with this distinction, unless the intent of the testator, or 
author of the trust, plainly appears to the contrary. But if the 
intent does not plainly appear to contradict and overrule the legal 

(a| Bagshaw v. Spencer, Collect. Jur. vol. 1, 378. 

(i) Fearne, Cont. Eem. 120, ed. 8. 

(c) Garth v. Baldwin, 2 Vez. 646. Fearne, C. E. 125, lb. 



Title XXXVIII. Devise. Ch. XIV. s. 29—30. 359 

construction of the limitation, it was never laid down, nor was it 
by him in the case of Bagshaw v. Spencer, that the legal con- 
struction should be overruled by any thing but the plain intent : 
— that he was not in a court of equity to overrule the legal con- 
struction of the limitation, unless the intent of the testator, or 
author of the trust, appeared by declaration plain, that is, . not 
saying it in so many words, but plain expression, or necessary 
implication of his intent ; which was the same thing. 

30. Henry Eayney, having five grandchildren, devised all his 
freehold estates to trustees and their Heirs, in trust to raise a sum 
of money for his grandchildren ; and subject thereto, to the use of 
his nephew, T. Rayney, and his assigns for his life, remainder to 
trustees to preserve contingent remainders, remainder to the use 
of the heirs male of the said T. Rayney begotten, and their heirs ; 
provided, that in case the said T. Rayney should die without 
leaving any issue male of his body living at his death, then and 
in such case he subjected the premises to the payment of ,£100 
a-piece to his two nieces ; and for default of such issue male of 
his said nephew, T. Rayney, then, as to all the premises, to his 
five grandchildren, or such as should be living at the time of the 
failure of issue male of the said T. Rayney, their heirs and assigns ; 
provided that the said T. Rayney should be put out apprentice to 
a surgeon, or sent to Cambridge ; and in case he should refuse 
to be an apprentice, or to go to Cambridge, then his will was 
that the estate so before limited to the said T. Rayney for his life, 
should cease and determine, and be void, as if he had been dead ; 
and that the said premises so limited to the said Thomas for his 
life, and his issue male as aforesaid, should from thenceforth re- 
vert over and go to such of his grandchildren as should be living, 
and to their heirs, (a) 

T. Rayney died without issue, having suffered a recovery of 
the premises ; and the question was, whether he took an estate 
tail, or an estate for life. 

Lord Keeper Henley said, first, that the estate was a fee 
in *the trustees, and not executed by the Statute of Uses *287 
in any of the subsequent limitations. But he thought that 
was not very material in the principal case, as by the will the 
trusts were fully limited and declared. For he thought it very 

(a) Wright i>. Pearson, Amb. 358. Fearne, Cont. Eem. 126, ed. 8. 1 Eden. 119. 



360 Title XXXVIII. Devise. Ch. XIV. s. 30—31. 

dangerous that a different construction should be put upon words 
of limitation, in cases of trusts and legal estates, except where 
the limitations were imperfect, and something seemed left to be 
done by the trustees in the first place ; and consequently, secon- 
darily by the Court of Chancery. 

The second question was, whether the heirs male of Thomas 
Rayney took a fee as purchasers, or in tail, under the limitation 
to the father. He thought that T. Rayney took an estate tail, 
from the apparent intent of the testator, who plainly intended 
that the heirs male, &c, should not take an estate in fee, which 
they must, if they took as purchasers. He was considering, he 
said, whether he could not make this construction, namely, to 
Thomas for life, then to his heirs male in tail, then to the grand- 
children. And if the limitation had been, for default of such 
heirs of the body, he might have considered it as heirs of the 
body of the heirs male, &c, mentioned before. But the limita- 
tion there was, for default of such issue male, &c. He thought 
the words, '■'■and their heirs" in the will, were redundant and 
surplusage ; and that Thomas Rayney took an estate tail ; and 
consequently, that the recovery suffered by him was good. And 
though it was a rule, never to reject words in a will, if they 
could stand, yet he must do it in this case, to support the testa- 
tor's intent. 

He said, that in the case of Bagshaw v. Spencer, which was 
a case of a trust, as the principal one was, Lord Hardwicke did 
upon that ground, and the limitation of the other moiety of the 
estate to the Spencers, and other circumstances in the case, 
which showed the intent of the testator plain and clear, con- 
strue it to be only an estate for life in Bagshaw, contrary to the 
former determinations. He did it on the plain intent of the tes- 
tator, and in so doing, assumed no more power than every court 
of law had. 

31. John Holman gave all his estate to trustees and their 
heirs, to the uses, trusts, and purposes therein mentioned ; first, 
to the intent that his sisters should receive an annuity for then- 
lives, and subject thereto, in trust for the plaintiff for life, 
288* remainder *to trustees to preserve contingent remainders, 
remainder to the heirs of the body of the plaintiff, remain- 
der to his own right heirs. He also gave the residue of his per- 



Title XXXVIII. Devise. Ch. XIV. s. 31—32. 361 

sonal estate to trustees, in trust to buy lands in fee, which he 
directed should remain, continue, and be, to, for, and upon such 
and the like estate and estates, trusts, intents and purposes, as 
were by him before devised, limited, or declared of and concern- 
ing his lands and premises thereinbefore devised, or as near there- 
to as might be, and the deaths of persons would admit, (a) 

Upon a bill to have the residue laid out according to the will, 
the question was, whether the plaintiff was entitled to an estate 
for life, or in tail, in the lands to be purchased. 

Lord Keeper Henley said, nothing was left to the trustees to 
be done but to buy the land ; the testator had declared the uses 
of the land when purchased : he did not believe the testator 
intended the trustees should make a conveyance ; there was no 
necessity for it. It was said, if the words in the former limita- 
tation had been again repeated, it would have been the very case 
of Papillon v. Voice ; (b) but he thought otherwise. There was 
a direction to the trustees in that case to convey, but there was 
no direction here. The true guide was this, where the assistance 
of trustees, which was ultimately the assistance of the Court of 
Chancery, was prayed in aid, to complete a limitation, in that 
case, the limitation in the will not being complete, it was a suffi- 
cient declaration of the testator's intention that the Court should 
model the limitations ; but where the trusts and limitations were 
expressly declared, the Court had no authority to interfere, and 
make them different from what they would be at law. 

Decreed, that the plaintiff was entitled to an estate tail. 

32. Sir William Morgan devised an estate to trustees, to raise 
money in aid of his personal estate, for the payment of his debts ; , 
and after payment thereof, then to stand seised to the use of his 
son William, for and during the term of his natural life, without 
impeachment of waste ; and from and after his decease, to the 
use and behoof of the heirs male of the body of his said son 
William, lawfully to be begotten, severally, respectively, and in 
remainder, one after another, as they and every of them should 
be in priority of birth and seniority of age ; and for default 
of such issue, to any after-born son he might have ; with a 

(a) Austen v. Taylor, Amb. 376. 1 Eden, 361. Jervoise v. Duke of Northumberland, 
1 Jac. & Walk. 559, 572, and see per Lord Eldon, 17 Ves. p. 76. (b) Infra, § 65. 

VOL. III. 31 



362 Title XXXVIII. Devise. Ch. XIV. s. 32—36. 

289 * power, * while in possession, of leasing, making a jointure 
and raising portions for younger children, (a) 
The question was, whether William the son took an estate in 
tail or for life only. • 

Lord Thurlow said, he could not distinguish this case from 
that of Wright v. Pearson, with which the case of Bagshaw v. ' 
Spencer could not stand. It had been contended, that however 
it might be at law, it should be construed otherwise in equity, 
for that the whole fee was given to the trustees, as it might be 
necessary for the payment of the debts ; but after payment of 
the debts, the testator did not mean to leave any thing executory ; 
no, the trustees were to stand seised to the subsequent uses. If 
this was not a legal estate, it was only not so because the first 
use might absorb the whole estate ; then the only question was, 
whether, under the cases decided, he must consider this point as 
being different in the case of legal and equitable estates. In 
Garth v. Baldwin, the construction restored the law, that trusts 
were to be' considered in the same manner- as legal estates ; if 
that were so, there could not be a more proper case to apply the 
rule than this, as there could be nothing so near a legal estate as 
the present : he thought therefore the same rule of construction 
must apply in equity, as at law ; and decreed, that William took 
an estate tail, (b) 

33. Where the Court of Chancery is called upon to direct a 
conveyance to be made under a will, the construction has been 

different ; of which an account will be given hereafter. 
290* *34. [The rule in Shelley's case has been also applied 
to the construction of limitations in wills and deeds of 
estates per autre vie. 

35^ In Low v. Burron, a person, seised of an estate for three 
lives, devised it to his daughter Mary for life, remainder to her 
issue male, remainder over ; the questions in the cause, and the 
decision, were grounded on the assumption that Mary took a 
quasi estate tail, (c) 

36. In Forster v. Forster, leaseholds for lives were settled upon 
trust for John Forster for life, and (after an intermediate charge 

(o) Jones v. Morgan, 1 Bro. C. C. 206. ( c ) 3 p. Wins. 262. 

(6) [Poole v. Poole, 3 Bos. & P. 620. Infra, § 47.] 



Title XXXVIII. Devise. Ch. XIV. s. 36—41. 363 

for portions,) in trust for the heirs male of John, remainder in 
trust for the heirs male of Charles, the father and settlor, remain- 
der to his right heirs. It was decided, that the limitations to the 
heirs of the body, and to the right heirs of Charles, were not 
words of purchase, giving contingent remainders to the heirs 
male of Charles, but were words of limitation, and that upon the 
death of Charles, the quasi entail was executed in possession in 
John, and that he had barred it by a subsequent settlement.] (a) 

37. The rule in Shelley's case has also been applied in the 
construction of wills of terms for years. Therefore if a term be 
given to A for life, and afterwards to the heirs of his body, these 
words are generally construed to be words of limitation, and the 
whole vests in the first taker, (b) 

38. But if there appear any circumstance or clause in the will, 
to show the intention that these words should be words of pur- 
chase, and not of limitation, then it seems the ancestor will take 
for life only, and his heir will take by purchase, (c) 

39. The rule in Shelley's case does not apply to the words 
" sons " or " children." And therefore a devise to A for life, with 
remainder to his first and other sons, or to his sons or children, 
gives to A only an estate for life, and his sons or children will 
take by purchase, (d) 

40. Thus, Lord Hale has cited a case, stated in 1 Roll. Ab. 
837, pi. 13, where a person devised to his eldest son for life, et 
non aliter ; and after his decease to the sons of his body : it 
was held to be an estate for life only in the son. And the usual 
mode of creating a strict settlement by will is, to devise to the 
eldest son for life, with remainder to his first and other 

sons * severally and successively, and to the heirs male of * 291 
the bodies of such first and. other sons ; remainder to the 
other sons of the testator in the same manner, (e) 

41. A person devised his estate to his son for life, and after 
his decease to the male children of the said son, successively, one 
after another, as they were in priority of age, and to their heirs ; 
and in default of such male children, he gave the same to the 
female children of the said son, and their heirs ; and in case the 

(a) 2 Atk. 258. Williams v. Jekyl, 2 Vez. 681. (d) Tit. 32, c. 23. 

(6) Dod i>. Dickenson, 8 Vin. Ab. 451, pi. 25. (e) 1 Vent. 231. 

(c) Fearne, Ex. Dev. 492, Ed. 8. 



364 Title XXXVIII. Devise. Ch. XIV. s. 41—44. 

said son should die without issue, then he devised the premises 
to his grandson in fee. (a) 

It was resolved, I. That the devisee did not take an immediate 
estate tail by the devise to his male and female children ; and 
II. That under the words, "in case the said son should die 
without issue," he did not take an estate tail by implication in 
remainder, after the limitation to his children, (b) ] 

42. A will was made in these words : " My will is that my 
son shall have and enjoy the manor of B. only for his life, and 
then the premises shall descend and come to his male children, 
if he have any, for their natural lives only, and to the male chil- 
dren descending from them." (c) 

It was resolved, that the son took an estate for life only. 

43. A person devised a house to his son for his life, and after 
his death unto all and every his children equally, and to their 
heirs ; and in case he died without issue, he gave the premises to 
his daughters, (d) 

It was admitted, that the son took an estate for life only. 

44. Where an estate is devised to a person for life, with re- 
mainder to his heirs, or to the heirs of his. body, and there are 
words of explanation annexed to the word " heirs," from whence 
it may be collected that the testator meant to qualify the mean- 
ing of the word " heirs," and not to use it in a technical sense, 
but as a description of the person or persons to whom he 
intended to give his estate, after the death of the first devisee ; 

(a) Ginger v. White, Willes, 348. (6) Ante, c. 12. 

(c) Goodtitle v. Woodhull, Willes, 592. 

(d) Goodright v. Dunham, Doug. 264. Rex v. Stafford, 7 East, 521. 



1 The testator devised lands to his daughter B. for her life ; then to her child or 
children, if any living at her death, to be equally divided between them ; if none 
living, then to his sons W. and J. for life ; then to be equally divided between their 
children. In like manner he devised other lands to his son W., and other lands to 
his son J., with the like limitations -in each case, in regard to their children, and if 
none, then over, to the other two devisees, as before. And in a codicil he said, that 
if all his children should die without issue of their bodies, his wife living, the life-estate 
should go to her during her life, with remainder over to other persons. It was held, 
that the two sons and daughter took each an estate for life, and that the remainders 
over were good. Smith v. Chapman, 1 Hen. & Munf. 240. This case was argued with 
great ability and learning, and with extensive research of authorities. See also Birthr 
right v. Hall, 3 Munf. 536. 



Title XXXVIII. Devise. Ch. XIV. s. 44—45. 365 

the word "heirs" will in that case operate as a word of pur- 
chase, (a) 

45. A person devised to trustees, to the use of and in trust for 
her sister Margaret Davie and her assigns, during her natural 
life, without impeachment of waste, remainder to the same trus- 
tees to preserve contingent remainders : and from and after her 
decease, then to the use of and in trust for the heirs male 
* of the body of the said Margaret to be begotten, sever- * 292 
ally, successively, and in remainder one after another, as 
they and any of them should be in seniority of age and priority 
of birth, the elder of such sons, and the heirs male of his body, 
lawfully issuing, being always preferred and to take before the 
younger of such son and sons, and the heirs male of his and 
their body and bodies ; and for want and in default of such issue, 
then to the use of and in trust for all and every the daughter and 
daughters of the body of the said Margaret to be begotten, to be 
equally divided amongst them, if more than one, share and share 
alike, to take as tenants in common and not as joint tenants, 
ahd of the several and respective heirs of the body and bodies of 
such daughter and daughters; and in default of such issue, 
remainder over, (b) 

Lord Kenyon said, he had not the smallest doubt upon the case. 
The intention was most obvious to give the first taker only an 
estate for life; but if that intention could not be carried .into 
effect, without shaking a positive rule of law, he should certainly 
bow to the decisions. The case of Colson v. Colson, (c) went 
on the same ground, and so afterwards did Perrin v. Blake (d) 
in the Exchequer Chamber, where the Judges thought, that after 
the rule of law in Shelley's case had governed so many subse- 
quent decisions, however imperfect in itself as a rule for con- 
struing the intention of a testator, it was necessary to abide by 
it. That rule,, however, was only established to the extent in 
which it was to be found in Shelley's case, to this effect, that if 
an estate of freehold be given to a man, and either mediately or 
immediately, in any part of the same instrument, an estate was 
limited to the heirs of his body, the latter limitation would unite 
with the former, and give Mm an estate tail. But it never had 

(a) (Dunwoodie v. Keed, 3 S. & E. 435, 448. Sewall v. Howard, 1 Har. & MoHen. 45.) 
(6) Goodtitle v. Herring, 1 East, 264. (c) Ante, s. 8, (d) Infra, § 76. 

31* 



366 Title XXXVIII. Devise. Ch. XIV. s. 45. 

been decided that those words might not be otherwise explained 
in the will by the testator himself. They were so explained in 
Lowe v. Davies. The estate which was the subject of dispute 
in that case, came afterwards to a gentleman who was not per- 
fectly satisfied with the decision, and would have canvassed it 
again. His doubts were founded upon an old opinion which he 
had discovered of Lord Holt's, that the words, " heirs of the body," 
were so positive to give an estate tail to the first taker, that they 
could not be gotten rid of by subsequent words. That opinion 
he had seen, but it was certainly too strait-laced a con- 
293 * struction, * and nobody had ever doubted but that the case 
of Lowe v. Davies was rightly decided. That case, how- 
ever, if it wanted confirmation, had been fortified by the subse- 
quent determination in Doe v. Laming; (a) the Court there 
clearly thought that the subsequent words, " as well females as 
males" showed that the testator meant the words, " heirs of the 
body" &c. to be words of description of the persons whom he 
intended should next take, and. not to be words of limitation; 
and therefore in this case Margaret took only an estate for life, (b) 
Mr. Justice Lawrence said, the question was whether the 
words, " heirs male of the body of Margaret" were descriptive 
of the persons whom the testatrix afterwards called " son or 
sons j " for of the intention there could be no doubt. She first 
gave Margaret an express estate for life, without impeachment of 
waste, then to trustees to preserve contingent remainders, then, 
after Margaret's decease, to the heirs male of her body to be 
begotten, severally, successively, and in remainder one after 
another, &c. All this was unnecessary, if the testatrix meant to 
give Margaret an estate tail ; but then she went on, — " the elder 
of such sons and the heirs male of his body to be preferred 
before the younger of such son and sons ; " evidently meaning 
the same persons whom she had before described as heirs male of 
the body of Margaret : therefore this fell directly within the case 
of Lowe v. Davies, and was the same as if the testatrix had said, 
" by heirs male of the body I mean the eldest son and other son 
and sons of Margaret ; " and if she had said so in as many words, 
it could not be questioned, but that tHe former words must have 
had that construction put upon them : now the words made use 

(a) Ante, c. 13, § 43, 44. (6) 1 Eep. 104, b. 



Title XXXVIII. Devise. Qu XIV. s. 45—47. 367 

of were in effect the same. Then the testatrix proceeded to give 
an estate to the daughters of Margaret in the same manner ; 
that also showed that by the words " such son and sons" she 
meant the same persons whom she had before described as the 
heirs male of Margaret ; for she first provided for the sons, and 
then for the daughters of the first taker. It was no answer to 
say, that by this construction, if the eldest son of Margaret had 
died in the lifetime of the testatrix, leaving a son, the devise 
would have lapsed, and the grandson been disinherited ; for if 
the obvious meaning of the will was that Margaret should only 
take for life, they could not enlarge that estate, in order to pre- 
vent a possible inconvenience. 

* Judgment was given, that Margaret took only an estate * 294 
for life. And upon a writ of error from this judgment to 
the House of Lords, the following question was put to the 
Judges : What estate Margaret Davie took ? The Lord Ch. B. 
delivered their unanimous opinion, that Margaret Davie took an 
estate for life. Whereupon the judgment was affirmed, {a) 

46. In a subsequent case, which is nearly similar to the last 
one, the Court of Common Pleas did not think it could restrain 
the legal effect of the words " heirs of the body," so as to con- 
vert them into words of purchase. 

47. Lands were devised to trustees and their heirs, to the use 
of them and their heirs, in trust for the use and benefit of the 
testator's first son during his life, and also upon trust to preserve 
the contingent remainders from being defeated or destroyed; 
and after his decease, to the several heirs male of such first son 
lawfully issuing, so as the elder of such sons and the heirs male 
of his body should always be preferred and take before the 
younger, and the heirs male of his body ; and for want of such 
issue, in trust for his second, third, fourth, and all and every 
other son and sons, for their respective lives, with remainders as 
before ; and for want of such issue in trust for his first daughter, 
and every other his daughter and daughters, for their several 
and respective lives ; and also upon trust to preserve the contin- 
gent remainders from being defeated and destroyed ; and from 
and after their several deceases, in trust for the several heirs 
male of their several and respective bodies lawfully issuing, so 

(a) Printed Cases, 1831. 



368 ®tle XXXVIII. Devise. Ch. XIV. s. 47—50. 

as the elder of such daughters and the several heirs male of her 
body should always be preferred and take before the younger of 
the same daughters, and the heirs male of her and their bodies ; 
with power to the persons who should be entitled to the posses- 
sion of his said estates to settle jointures, (a) 

The testator died, leaving a son, and the question, upon a case 
sent out of Chancery to the Court of C. P., was, what estate that 
son took under the will ? 

The Judges of the Court of Common Pleas certified to the 
Lord Chancellor, that if the devises, contained in the will, to the 
children of the testator, and their issue, had been devises of 
legal estates, the only son of the testator would have taken an 
estate in tail male ; there not appearing, upon the whole will 
together, sufficient indication of the testator's intention to 
295 * restrain * the legal effect of the words, " heirs male of the 
body" and to convert them into words of purchase. 

48. Where ivords of limitation are superadded to the word 
" heir" in the singular number, from which it appears, to have 
been the intention of the testator to denote, by the word " heir," 
a new stock and root of inheritance, it will be construed a word 
of purchase ; and the first devisee will only take an estate for 
life, (b) 

49. F. Archer devised lands to Robert Archer the father, for 
his life, and afterwards to the next heir male of Robert, and the 
heirs male of the body of such next heir male. It was agreed 
by Anderson, Walmsley, and the rest of the Court, that Robert 
had but an estate for life ; because he had an express estate for 
life, devised to him, and the remainder was limited to the next 
heir male of Robert, in the singular number, (c) 

50. A man devised land to Rose his daughter, for life, and if 
she married after his decease, and had issue of her body, then he 
willed that her heir, after his daughter's death, should have the 
land, and to the heirs of their bodies begotten, (d) 

It appears by the various reports of this case which are stated 
in 8 Viner's Ab. 213, pi. 4, that the Judges were much divided. 
Moor says, it was adjudged that Rose had only an estate for life, 

(o) Poole v. Poole, 3 Bos. & Pal. 620. (Malcolm v. Malcolm, 3 Cush. 472.) 
(5) [2 Ves. & B. 371.] (c) Archer's case, 1 Rep. 66, b. 

(d) Clerke v. Day, Moo. 593. [S. C. Cro. Eliz. 313. 1 Roll. Ab. 839. Lilly v. Taylor, 
Owen, 148.] 



Title XXXVIII. Devise. Ch. XIV. s. 50—51. 369 

and the inheritance in her heir by purchase, resting in abeyance 
all her life, and settling in th^e instant of death, (a) 

51. Mr. Fearne has observed, that there may possibly be some 
cases where the superadded words of limitation may be admitted 
to control the preceding words " heirs" " heirs male," &c, 
though in the plural number, when such superadded words limit 
an estate to such heirs, heirs male, &c, of a different nature from 
that which the ancestor would take, if the preceding words 
" heirs" " heirs male" &c, in those cases^ were taken as words of 
limitation. As in the case put by Anderson, of a limitation to 
the use of a man fgr life, and after his decease, to the use of his 
heirs, and the heirs female of their bodies. Here the first word 
" heirs " would have given a fee to the ancestor, if taken as a 
word of limitation ; whereas the subsequent words, " and the heirs 
female of their bodies" grafted on the word " heirs" could give 
only an estate tail female to the heirs. In such cases the general 
effect of the first words, " heirs of the body,'" &c, seemed to be 
altered, abridged, and qualified by such subsequent express words 
of limitation, annexed to them, as could not possibly be 
* satisfied by considering the first words as words of limit- * 296 
ation. But he observes, we must take care to confine 
this observation to those cases where the ingrafted words describe 
an estate descendible in a different course, and to different per- 
sons, as special heirs, from what the first would carry the estate 
to, viz : to males instead of females, or vice versd ; for where the 
first words give an estate tail general, and the words ingrafted 
thereon are words serving to limit the fee, it seems, by the gen- 
eral and better opinion, that the annexed words of limitation are 
not to be attended to ; as in the case of Goodright v. Pullyn, (b) 
and those of Wright v. Pearson, (c) and King v. Burchill, (d) 
where the ingrafted words limited the whole fee. That there 
does not appear to be the same inconsistency in construing the 
first words, which describe heirs special to be words of limitation, 
where the superadded words extend to heirs special ; as there is 
where the first words, and those ingrafted on them, distinguish 
two different incompatible courses of descent, and would not 



(a) Poole v. Poole, 3 Bos. & P. 620. Amb. 459. 

(5) Supra, s. 18. Doe v. Ironmonger, supra, c. 10, § 41. (c) Supra, § 30. 

(<Z (Supra, ch. 9, § 36. 



370 Title XXXVIII. Devise. Ch. XIV. s. 51—53. , 

carry the estate to the same persons. • In the latter case, it is ab- 
solutely impossible, by any implied qualification, to reconcile the 
superadded words to those preceding them, so as to satisfy both, 
by construing the first as words of limitation ; whereas in the 
former case, the superadded words are not contrary to, or incom- 
patible with the preceding, but in their general sense include 
them ; and there is no improbability in the supposition, that 
they were used by the testator in the same qualified sense as the 
preceding ; and then both may be satisfied, by taking the first as 
words of limitation, (a) 

52. Where the remainder is given to the heir of the first 
devisee, for the life only of suck heir, the first devisee will take no 
more than an estate for life. 

53. Francis Harvey devised in these words, — " I give to my 
son, Frank Mildmay, my farm called East House Farm, &c, to 
enjoy the rents and profits thereof during the term of his natural 
life, with power to make a jointure of all or part, if he should 
marry ; and after his death and jointure, if any be made, to the 
heir male of his body lawfully begotten, during the term of his 
natural life ; f and for want of such heir male, I give the said 

farm to my son, Carew Mildmay, &c." (b) 
297 * * It was agreed, that the limitation to F. M. to enjoy 

and take* the profits during his life, and after his decease 
to the heirs male of his body, would make an estate tail. So, if 
it had been to the heir male of his body in the singular number, 
Where nothing appeared which explained the intent to the con- 
trary ; but here the intention appeared to be that such heir male 
should have the land only for life, which showed that the testa- 
tor did not intend that those words should be taken as words of 
limitation ; and nothing appeared in the nature of the expression 
which imported that they should be taken so. Heir male, or 
next heir male, were words of purchase ; and in this case, where 
the devise was to F. M., and after his decease to the heir male of 

(a) Fearne, Cont. Rem. 182, Ed. 8, 1 Rep. 95, B. (6) White v. Collins, 1 Com. E. 289. 



t [In Doe v. Stenlake, 12 East, 515, where the devise was to A and her heirs, (she 
having two children before, and one horn after making the will,) during their lives ; it 
was decided that the latter words were repugnant to the others, and that A took an 
estate of inheritance.] 



Title XXXVIII. Devise. Ch. XIV. s. 53—55. 371 

his body, during his life ; the express limitation during his life, 
showed that he intended his son should have it in remainder 
for his life only : and when he devised it over for want of such 
heir male, to C. M., this did not import that C. M. should not 
have it till T. M. died without heirs male generally, but for want 
of such heir male, who was to have it for life, (a) 

54. Where an estate is devised to a person for life, remainder 
" to his issue" f with words of limitation superadded, the word 
" issue " will in that case be considered a word of purchase, (b) 1 

55. Sir Michael Armyn devised certain lands to Evers Armyn 
for life, and in case he should have any issue male, then to such 
issue male, and his heirs forever ; and if he should die without 
issue male, then he devised over, (c) 

It was agreed by all the Judges of the Court of K. B., that 
Evers Armyn had but an estate for life, and that the issue male 
of Evers Armyn, if there had been any, would have taken a fee 
by purchase. For, first, they held that though the word issue was 
sometimes construed as heirs, and as a word of limitation, yet 
in a devise it might be a word of purchase as well as of limita- 
tion. When it was taken as a word of limitation, it was collec- 
tive, and signified all the descendants in all generations ; but 
when it was taken as a word of purchase, it might denote 
a particular * person, and be designatio persona;. The * 298 
second question then would be, whether the intention of 
the testator appeared, that the word issue should be designatio 
personce, or whether he designed it to be a word of limitation ; 
and they held, that the testator designed it to be a description of 
the person, because he added a further limitation to the issue, 
viz. and to the heirs of such issue forever, (d) 

(a) [Seawards. Willock, 5 East, 198.] (J) Tit. 32, o. 23, s. 28. 

(c) Luddington v. Kime, 1 Ld. Eaym. 203. (<?) Boothby v. Vernon, tit. 5, c. 2. 



[t It does not appear to have ever been decided that a devise of a legal estate to 
A, for life, remainder to his issue, created an estate tail ; but in the case of Glenorchy 
v. Bosville which will be stated hereafter, Lord Talbot was clearly of opinion that these 
words would create an estate tail. — Note to former edition.'] 

1 Devise to J. G. for his life, and after to all and every the issue of his body, share 
and share alike, as tenants in common, and the heirs of such issue ; held to give J. G. 
an estate for life only. Greenwood v. Rothwell, 5 Man. & G. 628 ; 6 Scott, N. R. 670 ; 
6 Beav. 492. And see Goymour v. Pigge, 8 Jur. 526 ; Williams v. Caston, 1 Strob. 
130 ; Findlay v. Riddle, 3 Binn. 139. 



372 Title XXXVIII. Devise. Ch. XIV. s. 56—58. 

56. A will was made in these words, — " To the intent that all 
my lands should remain in my name and blood, I devise to 
J. S. my near kinsman, such and such lands, &c, to have and to 
hold for the term of his natural life only, without impeachment 
of waste ; then to the issue male of his body lawfully to be be- 
gotten, if God shall bless him with such issue ; remainder to the 
heirs male of the body of that issue." (a) 

Lord Ch. J. Parker delivered the opinion of the whole Court 
that the devisee was made tenant for life, remainder to the issue 
in tail. The words of the will, he said, were so express to this 
purpose, that neither any words that could have been used, nor 
any arguments, could make it plainer : this he said was both the 
obvious and the legal sense of the words, and what they would 
have imported in a conveyance, (b) 

57. J. Newson devised a moiety of certain lands, after the 
death of his wife, to his daughter Susan, during the term of her 
natural life, and after her decease, to the issue of her body law- 
fully begotten, and their heirs forever. Susan had one daughter 
born before the will was made, and two born after, (c) 

Lord Kenyon said, that in a will, issue was either a word of 
purchase, or of limitation, as would best answer the intention of 
the devisor : though in the case of a deed, issue was universally 
taken as a word of purchase. Therefore, without disputing any 
of the former cases, but, on the contrary, in confirmation of them 
all, and relying upon them for the foundation of this judgment, 
namely, that the intention of the devisor must prevail, he was of 
opinion that the devisor, in this case, used issue as a word of 
purchase, and consequently that Susan took an estate for life, 
and her children took an estate in fee simple. 

Judgment was given accordingly. 

58. It has been stated, in Chap. XII., that where a testator 
appears to have had a particular intent, and also a general intent, 

both of which cannot, by. any mode of construction, be 
299* carried *into effect, the courts will construe the will in such 

a manner as to effectuate the general intent, though by that 
means the particular intent be defeated. 



(a) Backhouse v. Wells, 10 Mod. 181. [See also Maonamara v. Ld. Whitworth, Cooper, 

211 (S) Vide Sparrow v. Shaw, ante, c. 12, § 49. , 

(c) Doe v. Collis, 4 Term K. 294. 



Title XXXVIII. Devise. Ch. XIV. s. 59—60. 373 

59. A person devised lands to A, for his natural life, and after 
his decease he gave the same to the issue of his body lawfully 
begotten, on a second wife ; and for want of such issue, to B and 
his heirs forever. Provided that A might make a jointure of all 
such premises to such second wife, (a) 

Lord Hale was of opinion, that this was an estate tail in A ; 
and though the three other Judges of the Court of K. B. were 
of a contrary opinion, yet upon error brought in the Exchequer 
Chamber, the judgment was reversed, and Lord Hale's opinion 
established. 

60. John Blunt devised an estate to his cousin, John Harris, 
to hold the same during the term of his natural life, and from 
and immediately after the determination of that estate, he gave 
the same to the issue male of John Harris, lawfully begotten, 
and to his and their heirs, share and share alike ; and for want 
of such issue, then he gave the same to the issue female of John 
Harris, lawfully begotten, to her and their heirs, share and share 
alike, if more than one, and for want of such issue, then he gave 
the same unto his cousin, William King, his heirs and assigns 
forever, with a condition, that if the said John Harris, or his 
issue, should at any time thereafter alienate, mortgage, or incum- 
ber, or otherwise defeat the bequests thereby made, that then he, 
the said John Harris, and all and every other person so alien- 
ating, mortgaging, or defeating the same bequests, should pay 
£2,000 to the person or persons, or their heirs, who ought next to 
take by virtue of the limitations thereinbefore given, (b) 

Lord Keeper Henley said, — " The first argument was that 
issue, technically, is a word of purchase, and words of limitation 
being added, the devise was to the issue of John Harris, after 
.his death in fee ; and it was compared, among other cases, to 
Luddington v. Kime, Salk. 224. But the true answer to that is, 
I. That there is no technical word in a will ; if the testator's 
intent be plain, the Court will modify and effectuate his expres- 
sions. II. That the case has no resemblance to Luddington v. 
Kime, because there the remainder was expressly contingent ; — - 
"to A for life, and in case he have any issue male, to such 
issue male and his heirs forever ; and if he die without issue 

(a) King v. Melling, 1 Vent. 225, 232. 2 Lev. 58. 2. P. Wms. 472. 
(S) King v. Burehell, 1 Eden, 424. 

vol. in. 32 



374 Title XXXVIII. Devise. Ch: XIV. s. 60. 

300* male, *then to B and his heirs forever." There the con- 
text necessarily supplies, "without (having) issue male." 
And to make issue a word of purchase in that will, the Court 
held that issue was to be taken there as nomen singulare, because 
the inheritance was annexed to the word issue. Here it is ex- 
pressly used in the plural number, to his issue and their heirs ; 
so. that if he intended the issue to take as purchasers, he intended 
them to take as joint-tenants ; and if John Harris had ten sons, 
and the youngest survived, the nine elder and their issue should 
be disinherited, which is an intent too absurd to be supposed. 

" It is manifest to me that the testator intended the word issue 
as a word of limitation ; because he intended that William King 
should take the estate for want of issue male of John Harris, 
whenever that default of issue happened ; and there is not a color 
to say, in grammatical, critical, or liberal construction, that there 
is any period in which that want of issue is restrained ; and here 
is a plain limitation of the whole fee in particular estates and 
remainders. 

" But then it is said, here are words of limitation superadded 
to the word issue, and if issue is taken as a word of limitation, 
the words, and their heirs, are nugatory. It is true, that the best 
construction of deeds and wills is to give every word an effect, 
if it can receive it consistently with other parts of the deed or 
will ; and therefore, in the case of Backhouse v. Wells, (a) where 
the devise was to B for his life only, and from and after his 
decease, then to the issue male of his body lawfully to be begot- 
ten, if God shall bless him with any, and to the heirs male of 
the body of such issue, and for default of such issue remainders 
over. There was the negative word only, and issue was collo- 
cated so as to import nomen singulare ; and the Court was at. 
liberty to take it as a limitation to the first and every other son 
of such issue. But in the case of Shaw v. Weigh, (b) where 
issue was used in the plural number ; in Legate and Sewell, (c) 
where heirs was used in the plural number : and in both cases 
words of limitation superadded ; the Courts were of opinion that 
the first limitation carried an estate tail ; and yet the latter words 
of limitation were, by that construction, rendered of no effect. 
And there is not a case in the books where issue or heirs have 

(a) Ante, s. 55. (6) Ante, c. 12, s. 49. (c) Ante, s. 19. 



Title XXXVIII. Devise. Ch. XIV. s. 60—61. 375 

been used in the plural number, and words of limitation added, 
that they have been taken as words of purchase; but, on 
the * contrary, heir in the singular number has, and issue * 301 
may, from the context, be construed words of limitation. 
But, in the present case, I think the proviso conditional is a plain 
declaration of the testator himself that he had given John Har- 
ris an estate tail, and that he intended to restrain him from a legal 
dominion over it. " If the said John Harris or his issue, or any 
or either of them shall, at any time hereafter, alienate, mortgage, 
or incumber, or otherwise commit any act or deed whatsoever, 
whereby to alter, charge, or defeat the limitations, then and in 
such case, &c. Now, how could John Harris charge or incumber 
the limitations subsequent, if the testator had given bim only an 
estate for life ? 

" Wright v. Pearson, (a) Trin. 1758, determined by me, was, 
in my opinion, a much stronger case than the present; for there, 
after a limitation for life, the next limitation was to support con- 
tingent remainders ; and that, too, was the case of a trust, and I 
was strongly pressed with the authority of Bagshaw v. Spencer. 
I was, after the best consideration I could give it, and after 
ransacking all the precedents, of opinion that it was the limita- 
tion of an estate tail. I have reviewed my notes, and find it 
was argued and treated in every respect like the present case. 
There was, as I remember, an appeal to the House of Lords, 
which was deserted, and therefore the acquiescence of the bar 
in that judgment is what makes it, after mature consideration, a 
considerable authority with me, though it was a judgment of my 
own. I am therefore of opinion, for the reasons mentioned, and 
upon the authorities cited, that John Harris took under this will 
an estate tail." 

61. Daniel Dodson devised in these words : I give unto my 
nephew George Grew, all, &c. to hold for and during the term of 
his natural life, and from and after his decease, to the use of the 
issue male of his body lawfully begotten, and the heirs male of 
the body of such issue male ; and for want of such issue male, 
he gave the premises to his nephew George Dodson, his heirs 
and assigns forever. George Grew had no child when the will 
was made. He entered on the premises upon the death of the 

(a) Ante, § 30. 



376 Title XXXVIII. Devise. Ch. XIV. s. 61. 

testator, suffered a recovery, and died without issue male. And 
the question was, whether he took an estate tail, or for life only, 
under the will, (a) , 

Lord Ch. J. Wilmot said, that though the testator cer- 
302* tainly * intended, in the first instance, to give George 
Grew only an estate for life, yet if he as certainly intend- 
ed that all his sons should take in succession one after another, 
(and they could not take in that manner but by lodging an estate 
tail in George. Grew,) then it came to this case — here were two 
things intended, one, an estate for life to G. Grew, another, an 
estate in succession to all his sons in tail male, ad infinitum. 
Could they both take place ? If they could, they ought ; if they 
could not, then balance the two intentions against one another, 
and see which was the weightiest and most comprehensive, and 
give that effect. Courts substitute themselves in the place of a 
testator, and suppose the question to have been asked him,— you 
have willed two things which -cannot both be obeyed exactly, 
according to your will ; and therefore one must yield to the other. 
What must have been the answer ? — I wish to be obliged in the 
principal, capital, and most material destination I have made, and 
to reject the secondary and subordinate one. 

There were three points to be considered. I. If he intended 
a successive inheritance to all the issue male of G. Grew ad in- 
finitum. II. Whether that intention could take place, if G. 
Grew had only an estate for life. And III. If it could not, then 
which of the two intentions must govern the construction. That 
is, if the words for life must give place ; or the words expressing 
an intention of giving a successive inhe